Terms of Use

TERMS OF SERVICE

By clicking “I Agree” on a web browser or signing a Statement of Work (SOW) referencing these Terms of Service, the Client agrees to these Terms of Service, which constitute a binding agreement between the Client and FirstPrinciples Growth Advisory LLC, and its affiliates and subsidiaries (collectively, “FPGrowth”). If the Client is acting on behalf of a company, the individual agreeing affirms they have the authority to bind the company identified during the agreement process.

RECITALS

WHEREAS, FPGrowth provides various services, including without limitation, digital marketing services and software development;

WHEREAS, Client desires to engage FPGrowth to provide certain digital marketing services, software development, and/or business consulting (“Services”) subject to the terms and conditions set forth herein and as further described in each applicable Statement of Work (“SOW”).  

NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants, and agreements of the parties hereinafter set forth, the parties agree as follows:

AGREEMENT

  1. Statements of Work: FPGrowth will provide such Services for Client as are set forth on each SOW which shall be executed by both parties.  To the extent an SOW requires employees or contractors of FPGrowth to be provided as direct resources for Client (“Resources”), the Resources shall provide the Services as set forth in each SOW.  For any SOW requiring FPGrowth to provide Client Resources, the SOW may also be referred to as a Resource Service Order (“RSO”).  A separate SOW must be signed by the parties with respect to each project Client wishes to have FPGrowth perform.  Once executed by both Parties, each SOW will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Statements of Work, effective as of the date stated therein (each an “SOW Effective Date”). In the event of a conflict between the terms of this Agreement and an SOW, the terms of the SOW shall control unless this Agreement expressly states that a specific provision of the SOW will be superseded by a specific provision of this Agreement.
  2. Manner of Providing Services: Each SOW shall provide the specific Services to be provided thereunder, together with any applicable pricing and payment structures.  For example, each SOW will specify the basis upon which Services are being provided, whether pursuant to a fixed/flat fee, time and materials, direct resource, hourly rate, monthly retainer, or otherwise.
  3. Payment for Services; Expense Reimbursement; Invoicing:
    1. Fees/Invoices: Client agrees to pay FPGrowth the amounts set forth on each SOW with respect to the Services to be provided.  FPGrowth will submit invoices with respect to Services provided and expenses incurred under each SOW.
    2. Reimbursement of Costs:  Unless the Services are provided pursuant to a fixed fee SOW or otherwise mutually agreed between Client and FPGrowth, Client agrees to reimburse FPGrowth for costs incurred by FPGrowth at Client’s request or as FPGrowth deems reasonably necessary to provide the Services, including but not limited to, costs for software, materials, computer upgrades, network upgrades, content writing, link building, and other additional costs attributable to the Services provided that are beyond the basic Services to be provided by FPGrowth under the applicable SOW.  All costs will be approved by FPGrowth and Client before they are incurred, which approval may be delivered by email or other electronic communication.
    3. Timing of Payment.: Client shall pay FPGrowth’ invoices within 10 days of the date on which the invoice was submitted.
    4. Payment Methods: Client may pay any fees owed to FPGrowth in any of the following ways:
      1. Bank Wire Transfer/ACH in USD
      * Account Name: FPGrowth Growth Advisory LLC
      * Routing number: 084106768
      * Account number: 9801976247
      * SWIFT/BIC: FRNAUS44XXX
      * Bank Name: Evolve Bank & Trust
      * Bank Address: 6070 Poplar Ave, Suite 200 Memphis, TN 38119
      2. Debit/Credit Card (must add a 3% transaction fee for payments using this method)
      FPGrowth reserves the right to alter the acceptable payment methods in its reasonable discretion.
    5. Delinquent Payments: Suppose payments owed to FPGrowth by Client under this Agreement remain unpaid for more than three (3) days after written notice (including email or other electronic communication) from FPGrowth to Client. In that case, FPGrowth may suspend further work regarding the applicable SOW. A finance charge equal to the lesser of 1.5% per month or the maximum amount allowed by law shall accrue on any invoiced amounts that remain unpaid for more than fifteen (15) days after becoming due. If any invoiced amounts remain unpaid for more than thirty (30) days after becoming due, Client agrees that FPGrowth reserves the right, in its sole discretion, to (i) deem such failure to pay as an effective termination of the applicable SOW(s), thereby incurring the applicable Early Termination Fees and/or (ii) deem such failure to pay as a breach of the Agreement subject to termination set forth in Section 9 below and may withhold the return of Client Materials and Client confidential information under Section 9(c) until full payment is received. Client further agrees to pay any attorney fees, court costs, or other costs incurred by FPGrowth in collection of delinquent acco0unts.
    6. Disputes: The client has thirty (30) days from receipt of an invoice to provide written notice of a dispute. The FPGrowth Client Services Team will work with the Client to resolve the dispute.  Invoices not disputed within thirty (30) days of receipt shall be deemed accepted by the Client.
    7. No Refund Policy: All fees paid to FPGrowth for Services are non-refundable. By accepting the and any associated SOWs, Client agrees that no refunds will be issued for any reason, including but not limited to dissatisfaction with the Services or business outcomes.
    8. Chargeback Policy: Client agrees not to initiate any chargebacks or payment disputes with its financial institution 
      1. Regarding amounts due under this Agreement without first attempting to resolve the matter in good faith directly with FPGrowth. In the event of an unauthorized chargeback, FPGrowth reserves the right to:
        1. Suspend or terminate all Services immediately without further obligation.
        2. Recover any chargeback fees incurred by FPGrowth from the Client.
        3. Pursue legal remedies to recover the disputed funds, including reasonable attorneys’ fees and court costs.
  4. Terms Specific to Certain Types of Engagements: Certain general terms apply to specific engagement types (e.g. flat fee, monthly retainer, time and materials, hourly rate, direct resources), which are set forth Exhibit A.  The terms set forth on Exhibit A and are expressly incorporated into and made a part of this Agreement as though fully set forth therein.
  5. Restrictions on Services: The Services shall not encompass any matters, and Client shall not request any Services to be performed under any SOW, that (a) are considered illegal in the United States, UAE, or India, (b) contain illegal content/materials, infringing upon the rights of FPGrowth or any third party, or (c) promote or facilitate the sale or use of (i) adult entertainment or oriented products or services (including any pornographic materials and escort services), (ii) firearms or other weapons, (iii) alcohol, tobacco, or drugs and any related controlled substances and paraphernalia, (iv) occult materials, (v) gambling and betting (including lottery tickets, online casino gaming, and off-track betting), or (vi) any other products or services that FPGrowth may otherwise deem harmful to its business or the business of its customers, in its reasonable discretion.
  6. Confidential Information:
    1. Definition: “Confidential Information” means any non-public information that relates to the actual or anticipated business, research, or development of a Party and any proprietary information, trade secrets, and know-how of a Party (the “Disclosing Party”) that are disclosed to the other Party (the “Recipient”) or its Resources, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Confidential Information includes research, development, and commercialization plans, processes, techniques, formulas, prototypes, and with respect to Client, all information generated by FPGrowth in the performance of the Services. Confidential Information also includes information that is defined as “Confidential Information” under any other agreement between the Parties. Confidential Information also includes the confidential information of third parties that has been provided to the Recipient hereto. Confidential Information is the sole property of the Disclosing Party.
    2. Exceptions: Confidential Information does not include any information that the Recipient can demonstrate: was publicly known and made generally available in the public domain before Disclosing Party disclosed the information to the Recipient, became publicly known and made generally available, after disclosure to Recipient by Disclosing Party, through no wrongful action or inaction of Recipient or others who were under confidentiality obligations, was in Recipient’s possession, without confidentiality restrictions, at the time of disclosure by Disclosing Party, as shown by Recipient’s files records, or was independently developed without use of or reference to the Confidential Information.
    3. Nondisclosure and Nonuse: Recipient will not, during and after the term of this Agreement, disclose the Confidential Information to any third party or use the Confidential Information for any purpose other than pursuant to this Agreement. Recipient will take all reasonable precautions to prevent any unauthorized disclosure of the Confidential Information including, but not limited to, requiring each employee and independent contractor with access to Confidential Information to execute a nondisclosure agreement containing terms that are substantially similar to the terms contained in this Agreement. Recipient will not, during and after the term of this Agreement, reverse engineer the Confidential Information.
  7. Intellectual Property; Software: Except as expressly set forth to the contrary in an SOW, and so long as Client has paid all sums due and payable pursuant to this Agreement:
    1. Inventions: All original works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, and information conceived, discovered, developed or otherwise made (as necessary to establish authorship, inventorship, or ownership) by FPGrowth, solely or in collaboration with others, and solely in the course of performing the Services; that reflect or contain Client’s Confidential Information; or that form all or part of a deliverable provided as part of the Services, whether developed as part of the Services or separately, but excluding Pre-Existing Works (collectively, “Inventions”) will be the sole property of Client. Inventions that constitute copyrightable subject matter will be considered “works made for hire” to the extent permitted under the United States Copyright Act. To the extent that ownership of the Inventions does not by operation of law vest in Client, FPGrowth will assign (or cause to be assigned) and does hereby assign fully and irrevocably to Client all right, title, and interest in and to the Inventions, including all related intellectual property rights.
    2. Pre-Existing Work: If in the course of performing the Services, FPGrowth incorporates into any deliverable or Invention any other work of authorship, invention, discovery, improvement, method, process, formula, design, technique, or information existing before the Effective Date of the first Resource Service Order that is owned or controlled by FPGrowth (a “Pre-Existing Work”), FPGrowth shall retain all ownership, right, title, and interest to such Pre-Existing Work, but will grant and does now grant to Client a nonexclusive, royalty-free, perpetual, worldwide license to reproduce, manufacture, modify, distribute, use, import, and otherwise exploit the Pre-Existing Work as part of or in connection with the deliverable or Invention.
  8. Non-Solicitation of Employees:
    1. During the term of this Agreement (including any SOW hereunder) and for a period of twenty-four (24) months following the termination of the Agreement, neither Party shall on its own behalf or on behalf or on behalf of any other person or entity, without the express written consent of the other Party, solicit, induce or attempt to solicit or induce: any then current employee or past employee, representative, contractor or other service provider of the other Party to terminate or modify his, her or its employment or business relationship with that Party. If a Party fails to comply with the requirements of this section and such Party’s noncompliance results in that Party hiring or contracting with a Resource or employee of the other Party or results in a third party hiring or contracting with a Resource or employee of the other Party, the then the breaching Party agrees to pay the other Party liquidated damages equal to the greater of $50,000.00 or the applicable Buyout Fee (as defined below) per Resource or Employee. The Parties agree that the foregoing amount is not a penalty, but rather, a good faith, reasonable estimate of the value of the lost resource.
    2. Reasonableness of Restrictions: The Parties agree that the restrictions contained in this section are reasonable in scope and term and appropriate to provide the Parties with limited, legitimate and reasonable protection against subsequent diminution of the value of the business of a Party attributable to any actions of the other Party that are contrary to such restrictions.  Client hereby waives any and all rights to attack the validity of such covenants on the grounds of the breadth of their geographic scope or the length of their term.
    3. Buyout Option: Should Client wish to directly hire a specific Resource, Client agrees to pay to FPGrowth a buyout fee equal to twelve (12) times the Resource’s Monthly Fee  at the time of such buyout (the “Buyout Fee”).
  9. Term and Termination:

    1. Term:  Subject to the termination rights set forth below, this Agreement shall continue in effect for one (1) year from the Effective Date (the “Initial Term”), unless this Agreement is terminated by a party in accordance with the provisions hereof.  This Agreement shall automatically renew for consecutive additional one (1) year terms (each a “Renewal Term”) after the Initial Term (defined below), each renewal occurring on the anniversary date of the Effective Date, unless a party elects not to renew this Agreement by giving not less than sixty (60) days’ prior written notice thereof to the other party.  The Initial Term and all Renewal Terms are herein referred to as the “term.” Each SOW shall commence and terminate in accordance with its provisions, but in no event will any SOW extend beyond the term of this Agreement.
    2. Termination:  Except as otherwise provided for in this Agreement, no party may terminate this Agreement during the first sixty (90) days following its Effective DateThereafter, Client may terminate this Agreement, any applicable SOW, or part of an SOW, for any reason or for no reason by giving at least sixty (60) days’ advance written notice to FPGrowth. Either Party may terminate this Agreement and any applicable SOW at any time (i) upon the other Party’s breach of any material provision of this Agreement that remains uncured ten (10) business days after receiving written notice of such breach or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. For the avoidance of doubt, Client’s failure to pay any invoiced sums when due shall be deemed a breach of a material provision of this Agreement.
    3. Return of Materials: Upon the termination of this Agreement, or upon Client’s earlier request, FPGrowth will deliver to Client or destroy all copies of all Confidential Information and other Client materials that are in FPGrowth’ possession or control, unless otherwise prohibited to do so by law, with the exception as outlined in Section 3(e).
    4. Survival:  Upon termination, all rights and duties of the Parties toward each other cease except that:
      1. By the dates stated herein, and under no circumstances to exceed fifteen (15) days of the date of termination, Client will pay all invoiced amounts to FPGrowth, including any applicable Early Termination Fees; and
      2. Sections 6, 7, 8, 9(c), 9(d), and 10 will survive termination or expiration of this Agreement.
  10. Indemnification:

    1. Client Indemnification: Client will indemnify, defend, and hold harmless FPGrowth and its directors, officers, and employees from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: any grossly negligent, reckless, or intentionally wrongful act of Client or Client’s employees or Resources; any breach by Client or Client’s employees or Resources of any of the covenants, warranties, or representations contained in this Agreement; any violation or claimed violation of a third party’s rights (including without limitation, any intellectual property rights) resulting in whole or in part from Client’s use of the Resources; failure of Client to obtain the necessary rights or legal permits, licenses or clearances for FPGrowth to perform the Services; or violations of international, federal or state laws resulting from the services requested or other directions provided to the Resources by Client, including, but not limited to, violations of any Federal Trade Commission Sales Rules including the Do Not Call Registry and violations of any trademark, copyright, patent, or trade secret laws including those arising out of use of software or trade secrets.
    2. FPGrowth Indemnification: FPGrowth will indemnify, defend, and hold harmless Client and its directors, officers, and employees from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: any grossly negligent, reckless, or intentionally wrongful act of FPGrowth or FPGrowth’ employees or Resources; any breach by FPGrowth or FPGrowth’ employees  or Resources of any of the covenants, warranties, or representations contained in this Agreement; any failure of FPGrowth to perform the Services in accordance with all applicable laws, rules, and regulations; or injuries to persons that occur on FPGrowth’ premises or premises under FPGrowth’ control.
  11. No Guarantee of Results: FPGrowth makes no guarantees regarding specific results, performance metrics, or business outcomes as a result of the Services. Client acknowledges that marketing and software development outcomes are influenced by various external factors beyond FPGrowth’s control, including market conditions, client actions, and third-party platform changes.
  12. Client Responsibilities: The Client Agrees to:
    1. Provide timely access to information, assets, and approvals necessary for the completion of Services.
    2. Ensure the accuracy and legality of all content, materials, or data provided to FPGrowth.
    3. Adhere to the agreed payment schedule.
      FPGrowth is not responsible for delays or suboptimal results caused by the Client’s failure to fulfill these responsibilities.
  13. Remedies and Damages:
    1. Limitation of Remedies: UNDER NO CIRCUMSTANCES WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION(S) CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. THIS LIMITATION WILL APPLY EVEN IF THE REMEDIES AVAILABLE IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
    2. Liability LimitationEach Party’s total liability to the other, whether in contract or in tort (including breach of warranty, negligence, strict liability or otherwise) shall be limited to the greater of the amount equal to the three months of total charges payable to FPGrowth pursuant to this Agreement or the amount covered by insurance; including (i) damages occasioned by the willful misconduct or gross negligence of a Party; (ii) liquidated damages pursuant to Section 8(c); or (iii) third party claims that are the subject of indemnification under Section 10.
  14. Warranties; Limitations: As an inducement to each Party entering into and consummating this Agreement, the parties represent, warrant, and covenant as follows:
    1. Organization Representations; Enforceability: Each Party is duly organized, validly existing, and in good standing in the jurisdiction stated in the preamble to this Agreement. The execution and delivery of this Agreement and the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of such Party. This Agreement constitutes a valid and binding obligation of such Party that is enforceable in accordance with its terms.
    2. No Conflict: The entering into and performance of this Agreement does not and will not violate, conflict with, or result in a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien, or encumbrance to which such Party is a party or by which it or any of such Party’s property is or may become subject or bound.
    3. FPGrowth Warranties: FPGrowth represents and warrants that the Services will be performed in a timely, competent, professional, and workmanlike manner by qualified personnel. FPGrowth will use commercially reasonable efforts in providing security and anti-virus protection with respect to performing the Services. FPGrowth will comply with all applicable laws of India, and the United States  and possess and maintain all applicable licenses for operations in India.  FPGrowth will assume sole and exclusive responsibility for the payment of wages, benefits, and taxes for the Resources and will indemnify Client against any claims made or brought by the Resources, or a taxing authority relating to such payment or withholdings.
    4. Limitations: Other than the above enumerated warranties, FPGrowth makes no representations or warranties, express or implied, with respect to the Services or the work product produced by the Resources, including, without limitation, any warranty of fitness for a particular purpose, satisfactory quality or merchantability. FPGrowth furthermore makes no representations or warranties with respect to compliance with any international law or regulation other than as expressly stated herein.
  15. Trademarks/Logos:  Except as otherwise provided herein, FPGrowth’ use of Client’s marks and logos, if any, shall be solely in connection with the Services commissioned pursuant to this Agreement. Client hereby grants to FPGrowth a non- exclusive, non-transferable, non-sublicensable, revocable, royalty-free and worldwide license to use Client’s marks and logos solely to perform the Services and to refer to Client as a customer in FPGrowth’ services sales literature, advertising and promotional materials. Subject to Client’s continuing right to revoke the foregoing license, the term of the license shall survive the termination or nonrenewal of this Agreement.
  16. Independent Contractor; No Partnership or Joint Venture:  The parties are independent contractors and nothing herein contained will be construed as creating any relationship of employer/employee, partnership, agency, joint venture, or otherwise between the parties hereto.  Nothing contained in this Agreement will be construed as conferring on any party any express or implied right, power, or authority to enter into any agreement or commitment, express or implied, or to incur any obligation or liability on behalf of any other party.  In addition, this Agreement will not be construed as creating any relationship between one party and the other party’s employees.  Accordingly, neither party nor its employees will be entitled, as a result of this Agreement, to any of the benefits under any employee benefit plan the other party presently has in effect or may put into effect; nor will either party or its employees be considered employees of the other party for any purpose.  This section does not preclude the parties from entering into a separate, written joint venture, equity, or partnership agreement, or other similar agreement, with each other.  If the parties enter into such agreement, the terms of that agreement will govern that part of the parties’ relationship.
  17. Notice:  Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: delivered in person, sent by first class registered mail, or air mail, as appropriate, sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address as set forth below, or send via email or facsimile as may be indicated below.  Either party may change its address for notices by notice to the other party given in accordance with this Section.  Notices will be deemed given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.
  18. Non-Waiver:  The waiver by either of the parties hereto of any breach of any provision hereof by the other party shall not be construed to be either a waiver of any subsequent breach of any such provision or a waiver of the provision itself.
  19. Assignment:  Neither party shall assign, sublicense, transfer, or otherwise convey its rights or obligations under this Agreement without the other party’s prior written consent.  
  20. Governing Law; Jurisdiction; Venue; Attorney’s Fees:  This Agreement shall be governed by, and construed in accordance with, the laws of the State of Wyoming, United States of America, without regard to its conflict of laws principles and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Except as specified in Section 18, the Parties agree that any action arising out of or in connection with this Agreement will be heard in the federal, state, or local courts in Cook County, Illinois, United States of America, and each party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.
  21. Arbitration:  Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any claim or dispute arising under or relating to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration in Cook County, Illinois, United States under the Rules of the American Arbitration Association by three arbitrators appointed in accordance with such rules.  All other disputes will be resolved by a court specified above. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. 
  22. Attorney’s Fees:  The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration or litigation arising under this Agreement.
  23. Authority:  By signing this Agreement, the person signing on behalf of each party represents that he or she is duly authorized by the such party to sign this Agreement on its behalf and to bind it and its successors and assigns to the responsibilities, duties, and obligations set forth herein.
  24. Force Majeure: Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, pandemics, riots, failures or delays in transportation or public utilities, including telecommunications and related services, where reasonable redundant systems cannot be obtained, or other circumstance not within the reasonable control of the party required to perform hereunder; provided, however, that lack of funds shall not be deemed to be a reason beyond a party’s reasonable control. The parties will promptly inform and consult with each other as to any of the above causes which in their judgment may or could be the cause of a delay in the performance of this Agreement.
  25. Entire Agreement; Amendments; Non-Reliance; Severability: This Agreement, which includes its Exhibit and Schedule, constitutes the entire agreement between the parties and is deemed accepted by the Client through either clicking “I Agree” on a web browser or signing a Statement of Work (SOW) that references these Terms of Service. In the event of a conflict between the terms of this Agreement and an SOW, the terms of the SOW shall control unless this Agreement expressly states that a specific provision of the SOW will be superseded by a specific provision of this Agreement. Any modification or amendment will not be effective unless in writing and accepted either through a signed acknowledgment or a documented update to these Terms of Service on FPGrowth’s website. 

This Agreement supersedes all prior negotiations, representations, or agreements, either written or oral. In entering into this Agreement, no party is relying on any promises, whether written or oral, except as expressly set forth herein. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect.

  1. Execution and Acceptance.  By clicking “I Agree” on a web browser or signing a Statement of Work (SOW) referencing these Terms of Service, the Client agrees to these Terms of Service, which constitute a binding agreement between the Client and FPGrowth Growth Advisory LLC, and its affiliates and subsidiaries (collectively, “FPGrowth”). If the Client is acting on behalf of a company, the individual agreeing affirms they have the authority to bind the company identified during the agreement process. If the Client signs an SOW physically or electronically, such signatures or electronic acceptances, whether transmitted via facsimile, scanned image, or other electronic means, will be considered valid and binding counterparts. Together, these actions form a single, binding agreement.

Exhibit A

Terms Specific to Various Types of Engagements

The following provisions apply to the specific type of engagement referenced herein and are specifically incorporated into the Terms of Services as though fully set forth therein.  Any capitalized terms shall have the meanings set forth in that Agreement.

  1. Terms Specific to Direct Resources provided to Client:  For any SOW requiring FPGrowth to provide Client with Resources, whether for software development or digital marketing purposes, the following terms shall apply:
    1. Payment Terms: Invoices will be released on the third (3rd) of each month with net-10 terms. Additional approved hours or expenses will be billed in arrears in the following month. Approved credits or discounts will be provided in the following month. Upon termination of this Agreement, any unused hours will be credited back to the Client. Invoices will be auto billed via ACH or the Credit Card on File on the Due Date. The Client can request to pause the invoice processing between the release date and invoice date.  
    2. Hours/Holidays: Each Resources shall work forty (40) hours per week, Monday through Friday unless otherwise specified in the applicable Resource Service Order. Resources have eighteen (18) Holidays that account for important U.S & Indian National Holidays during any calendar year. In addition, each Resource will be allowed up to twelve (12) days of PTO/Vacation Time each year and six (6) Sick Days during the term of the engagement (or the prorated number of days if the contract is for less than one year). FPGrowth may leverage another Resource to fill in for another Resource’s inability to work on a particular day.
    3. Feedback/Replacement Resources: Client agrees to provide specific written feedback to FPGrowth about each Resource’s performance on a monthly basis. If a Resource is not meeting the reasonable performance expectations of Client, Client will provide written notice to FPGrowth (either in the monthly report or otherwise) detailing how such expectations are not being met, and will thereafter commence providing specific weekly feedback to FPGrowth regarding the Resource’s performance for the following four (4) weeks (or until such Resource is meeting reasonable performance expectations). If such Resource continuously fails to meet reasonable performance expectations over such four (4) week period, Client may request that FPGrowth recruit a replacement Resource.  Under such circumstances FPGrowth shall bear the costs of recruiting a replacement Resource.  Client shall be entitled to a credit in the amount of the billed work attributable to a replaced Resource which is not actually performed.  That credit shall be offset by the charges attributable to work performed by the replacement Resource during the same billing period. If Client fails to provide specific written performance feedback for any Resource in any given month, the performance of such Resource will be considered satisfactory for that month.
    4. Insurance:  FPGrowth shall pay all applicable insurance, benefits, taxes, and overhead it allocates to such Resources.
    5. Overtime Fee: Subject to the reasonable consent of FPGrowth in each case, Resources may work holidays, overtime, weekend, or past normal working hours at a rate one and a half times (1.5x) the Resource’s Hourly Rate. 
    6. Early Termination Fee: In the event of a termination of a Resource Service Order prior to the completion of work thereunder, Client shall pay to FPGrowth, all outstanding invoiced amounts, as well as a one-time Early Termination Fee equal to one and half times the Total Expected Monthly Fee (as set forth on each SOW), with both sums due and payable upon the date of such termination.
    7. Unscheduled Downtime: FPGrowth is not responsible for unscheduled downtime that results from force majeure circumstances or events beyond the parties’ control (as defined in Section 22). However, if, in a calendar month, service time is lost as a direct result of such circumstances and the lost service time is the equivalent of four (4) days or more in that month, then Client’s next invoice will be discounted in proportion to the applicable Resources’ invoiced time which was not actually worked.
  2. Terms Specific to Fixed Fee Engagement.  For any SOW that is a fixed fee engagement for website development and/or digital marketing, the following terms shall apply:
    1. Payment Terms: Payments will be due according to the payment schedule outlined in the SOW. Invoices will be due upon release.  Approved Invoices will be auto billed via ACH or the Credit Card on File.
    2. Web Hosting, Website/Software Application Maintenance:  Client understands and agrees that any web hosting services or website/software application maintenance are not covered under the terms of this Agreement and requires a separate contract.
    3. LIMITED WARRANTY: FPGrowth warrants for a period of thirty (30) days following final delivery of the website (the “Warranty Period”) that all services will be performed in a professional manner in accordance with generally applicable industry standards. FPGrowth’ sole liability (and Client’s exclusive remedy) for any breach of this warranty shall be for FPGrowth to re-perform any deficient services, or, if FPGrowth is unable to remedy such deficiency within thirty (30) days, to void the invoice for the deficient services. FPGrowth shall have no obligation with respect to a warranty claim: (i) if notified of such claim after the Warranty Period or (ii) if the claim is the result of third-party hardware or software, the actions of Client or a third-party or is otherwise caused by factors outside the reasonable control of FPGrowth.
    4. Rights, Ownership, and UsageSubject to FPGrowth’ receiving full payment under this Agreement, FPGrowth assigns to the Client, without representation or warranty, all rights, title and interest FPGrowth may have in any work specifically created by FPGrowth for the Client (“Work Product”) pursuant to this Agreement, except that:
      1. FPGrowth may NOT use and distribute, in part of full, any Work Product without express written permission from Client;
      2. FPGrowth shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials (collectively, “Work”) which have been presented to the Client but not included in the final Work Product, if only if (a) all such Work was clearly marked; (b) any such Work was not a derivation, modification or directly related to Client Work Product, and (c) it was not based on any Client Confidential Information; and
      3. If in the course of performing the Services, FPGrowth incorporates into any deliverable or any other work of authorship, invention, discovery, improvement, method, process, formula, design, technique, or information existing before the Effective Date of this Agreement that is owned or controlled by FPGrowth (a “Pre-Existing Work”), FPGrowth shall retain all ownership, right, title, and interest to such Pre-Existing Work, but will grant and does now grant to Client a nonexclusive, royalty-free, perpetual, worldwide license to reproduce, manufacture, modify, distribute, use, import, and otherwise exploit the Pre-Existing Work as part of or in connection with the deliverables hereunder.
  3. Terms Specific to Time and Materials-Based Engagements.  For any SOW that involves software development or marketing services billing on the basis of time and materials, the following terms shall apply:
    1. Definitions:
      1. “Deliverables” shall mean all work, services, materials and deliverables provided, performed or created under this Agreement, including any Intellectual Property made or developed by the FPGrowth during the course of rendering the Services.
      2. “Sprint” or “sprint” shall mean a set period of time (as further set forth in below) during which specific tasks and/or Deliverables with respect to the Project (as defined in each SOW) must be completed and delivered to the Client.
    2. Payment Terms: Invoices will be released on the 3rd of each month with net 10 terms. Additional approved hours or expenses will be billed in arrears in the following month. Approved credits or discounts will be provided in the following month. Upon termination of this Agreement, any unused hours will be credited back to the Client. Invoices will be auto billed via ACH or the Credit Card on File on the Due Date. The Client can request to pause the invoice processing between the release date and invoice date.  
    3. Sprint Planning & Execution:
      1. Tasks to be defined by a two week or four (sprint) basis.  Tasks explanation, access to necessary information code, server, documentation, or third-party access has to be provided by the Client to the FPGrowth 7 (seven) business days prior to the start of any sprint. FPGrowth shall perform an analysis and provide an efforts estimation within 3 business days before the start of the sprint. Tasks with the appropriate information (the “Assignment”) will be updated by FPGrowth in the Project Management Software at least 1 business day before the start of the project. 
      2. Upon approval of estimated hours by the Client via email, the FPGrowth will start working on the Assignment. 
      3. The Resources working on an Assignment will provide updates on what was completed and status reports in Slack and also via the Project Management Software.
      4. Any Deliverable provided to the Client for testing and approval shall be deemed approved unless rejected in writing setting forth specific reasons for such rejection no later than two (2) business days after FPGrowth submits the Deliverable to the Client.
      5. All sprint hours must be approved by the client in writing via email for the sprint hours to be considered billable. The Client can expect the sprint plan at least 1 business day before the start of the sprint. Any changes in expected billable hours during an on-going sprint must be approved in writing for the sprint hours to be considered billable.
      6. FPGrowth will issue a separate Invoice for Server Cost (such as staging, development etc.) and other IT resources that may be required based on the project requirements and specifications.
      7. The Resources will provide support until 11:00 AM EST.
      8. Planned weekend work (work taking place on Saturday and Sunday) will only take place for deployment activities and/or activities that impact the live application which cannot occur during the Client’s regular business hours. If the Client requests Resources to be allocated over a weekend for activities, this work will be charged separately at a 1.5x the resource hourly rate. 
      9. The first escalation point of contact will be Matt Umbriac (matt@fpgrowth.io) and the second escalation point of contact is Client Services Team escalation@fpgrowth.io
      10. Any delays arising due to dependencies on third party tools, developers or APIs will not be counted as delays.
      11. If the Resources have to take any leaves or holidays, they will provide notification to the Client a minimum of 2 days before.
      12. The Resources will provide Efforts-Estimation for all the tasks provided by the Client, and based on the Efforts-Estimation, the work will be carried out.   
      13. In the event that a payment for completed work is not received by the agreed upon deadline (‘invoice due date’), the FPGrowth will cease all work until such pending payment is received.
    4. Client’s obligation to pay FPGrowth for all Services performed and billable hours worked prior to any termination shall survive the termination of this Agreement.  Upon full and final payment for all Services performed and billable hours worked, FPGrowth will provide the Client with all Deliverables, whether completed in whole or in part.
    5. The FPGrowth will offer thirty (30) days of support following the termination or completion of the Agreement. Any issues related directly to work completed by the FPGrowth will be included. Any issues not directly related to work completed by the FPGrowth will not be included, and can be addressed separately at Resource rates agreed upon by the Client in this Agreement. The FPGrowth agrees to provide reasonable support and assistance to any subsequent engineers or developers the Client may hire or employ. Client has the option to retain FPGrowth beyond 60 days at the same rates as agreed upon in this Agreement, provided that such option must be exercised by the Client in writing.
  4. Terms Specific to Monthly Retainer Engagements.  For any SOW that involves digital marketing services in exchange for a monthly retainer amount, the following terms shall apply:
    1. Payment Terms. Invoices will be released on the third (3rd) of each month with net-10 terms. Additional approved hours or expenses will be billed in arrears in the following month. Approved credits or discounts will be provided in the following month. Upon termination of this Agreement, any unused hours will be credited back to the Client. Invoices will be auto billed via ACH or the Credit Card on File on the Due Date. The Client can request to pause the invoice processing between the release date and invoice date. Except as otherwise set forth in the SOW, and notwithstanding anything contained elsewhere in this Agreement, all expenses and disbursements incurred by FPGrowth in connection with this Agreement shall be borne wholly and exclusively by  FPGrowth, and the Client shall not in any way be responsible or liable for such expenses.