Cinergy Fractional Integrator Services Contract


STATEMENT OF WORK:

This Statement of Work ("SOW") between (“Client”) and Cinergy Growth  LLC (“Agency”), effective . This SOW is subject to the terms and conditions contained in the included Master Services Agreement ("MSA") and Mutual Non Disclosure Agreement ("NDA") between the parties and is made a part thereof. Any term in this SOW not otherwise defined herein shall have the meaning specified in the MSA.
 
Term and Renewal: From Effective Date to one month from Effective Date, automatically renewing on contract anniversary date unless Client provides notice to cancel within 30 days of renewal date.
 
Client Commitments: Client understands that its participation is important to achieving the highest value from the relationship with Cinergy and therefore agrees to be an active participant in with their Cinergy Coach and within the Cinergy Network. Client further agrees to: 
  1. Provide payment as agreed upon within this SOW and it's associated MSA. 
  2. Provide access to requested accounts related to online services, data, and tools. 
  3. Provide information requested for effective generation of copy and design assets. 
  4. Provide necessary employee, customer, or partner contacts as needed to properly conduct any research activities. 
Cinergy Commitments ("Services"): 
  • Agency will process agreed upon regularly recurring activities as specified with the client. 
  • Agency will prepare a process document defining the company process and SOPs.
  • A full Cinergy Network membership

Payment Terms: Client agrees to automatic recurring purchases processed against either a credit card or bank account (ACH) on file with Cinergy, with the first payment due on the Effective Date. For the recurring payment portion of this engagement, Agency will commit to 24 hours per month to the project and all additional hours will be billed separately at $100 per hour. Additional hours will have Clients prior approval.

Period of Performance
Upon acceptance of this SOW, someone from the Agency shall reach out to the Client to schedule a kickoff date for Services. Services shall complete at the end of the half-day sprint, and delivery of final notes/deliverables agreed upon in the meeting. 

Agency Representations
Agency represents, warrants, and covenants that all Services to be performed under this SOW shall be performed in a professional, competent, diligent and workmanlike manner by knowledgeable, trained and qualified personnel, all in accordance with the terms of this SOW and the standards of performance considered generally acceptable in the industry for similar tasks and projects. In the absence of an agreed upon upfront specification for the performance of any portion of this SOW, the parties agree that the applicable specification shall be the generally accepted industry standard for similar work.

 
MASTER SERVICES AGREEMENT:

This Master Services Agreement (the “MSA”), effective is made by and between (“Client”) and Cinergy Growth  LLC (“Agency”):

WITNESSETH:
WHEREAS, the Client seeks to retain Agency to perform certain project related and other services for the Client (the “Services”);

WHEREAS, the Client desires to protect and preserve confidential information directly or indirectly relating to its business for its own use and benefit and to set forth ownership rights with respect to intellectual property and deliverables hereunder;

NOW THEREFORE, in consideration of the retention of Agency, the parties agree to the terms and conditions hereinafter set forth, as follows:

Section l. Scope of Work, Fees, Expenses

  1. The Client shall pay Agency resources according to rates included with each Statement of Work (“SOW”).
  2. Agency will bill Client one a month upon the renewal of their Effective Date. 
  3. All invoices are due NET 15, or according to the payment terms outlined in each SOW.
  4. Any invoices paid after the due date will be subject to a 1.5% monthly late fee on past-due amounts.
  5. For hourly work billed on a time and materials basis, rates are annually (at the first of the calendar year) subject to an automatic increase of 4% per year. 

Section 2. Confidentiality and Intellectual Property

Agency has executed agreements simultaneously herewith providing for the protection of the Client’s confidential information and treatment of intellectual property. Agency agrees to comply in all respects with such agreements.

Upon final payment of any undisputed invoices under the SOW covering the work performed, Any work performed at the Client’s direction for the Client is considered “work for hire” and the intellectual property contained therein becomes the property of the Client.

Section 3. Termination

The term of this agreement will be for one year and any SOW agreed to by the parties can extend this agreement by so indicating their mutual agreement.  Upon termination of this MSA, all materials, documentation or information of any kind produced or generated by Agency prior to the date of termination shall be delivered to the client or destroyed by Agency as directed by the Client if it so directs Agency.

Section 4.  LIMITATION OF LIABILITY AND DAMAGES.

4.1 For purposes of all exclusive remedies and limitations of liability set forth in this MSA or any Attachment, “Agency ” shall be defined as Agency, its Affiliates, and its and their respective employees, directors, officers, agents, representatives, subcontractors, interconnection service providers and suppliers; and “Client” shall be defined as Client, Client’s Affiliates, and Client and their respective employees, directors, officers, agents, and representatives; and “Damages” will refer collectively to all injury, damage, liability, loss, penalty, interest and expense incurred.

4.2 EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDIES, FOR CLAIMS ARISING IN CONNECTION WITH OR RELATING TO THIS MSA SHALL BE:

4.2.1     FOR BREACHES OF OBLIGATIONS REGARDING THE PERFORMANCE OF PROFESSIONAL SERVICES, CLIENT’S EXCLUSIVE REMEDY AND AGENCY ENTIRE LIABILITY SHALL BE, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS MSA, TO REPEAT THE PARTICULAR ASPECT OF THE SERVICES ALLEGED TO HAVE BEEN PERFORMED IN BREACH OF THIS WARRANTY.   THE PROVISIONS OF ALL SOWs SHALL NOT CONSTITUTE REPRESENTATIONS OR WARRANTIES.

4.2.2     FOR BODILY INJURY OR DEATH TO ANY PERSON, OR REAL OR TANGIBLE PROPERTY DAMAGE, NEGLIGENTLY CAUSED BY A PARTY, OR DAMAGES ARISING FROM THE WILLFUL MISCONDUCT OF A PARTY, THE OTHER PARTY’S RIGHT TO PROVEN DIRECT DAMAGES;

4.2.3     FOR DEFECTS OR FAILURES OF THE SOFTWARE, OTHER THAN THOSE RESULTING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, NONE.

4.2.4     FOR INTELLECTUAL PROPERTY INFRINGEMENT RESULTING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, THE REQUIREMENT TO FIX IN A NON INFRINGING WAY OR REFUND FEES PAID FOR INFRINGING WORK

4.2.5     FOR DAMAGES OTHER THAN THOSE SET FORTH ABOVE AND NOT EXCLUDED UNDER THIS MSA, EACH PARTY’S LIABILITY SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED PER CLAIM (OR IN THE AGGREGATE DURING ANY TWELVE (12) MONTH PERIOD) AN AMOUNT EQUAL TO THE FEES PAID BY CLIENT TO AGENCY FOR THE PORTION OF THE OUTSOURCED SERVICE OR OTHER SERVICE, AS THE CASE MAY BE, FROM WHICH THE CLAIM AROSE DURING THE THREE (3) MONTHS PRECEDING THE MONTH IN WHICH THE DAMAGE OCCURRED.  THIS SHALL NOT LIMIT CLIENT’S RESPONSIBILITY FOR THE PAYMENT OF ALL PROPERLY DUE CHARGES UNDER THIS MSA.

4.3 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OF ANY KIND OR INCREASED COST OF OPERATIONS.

4.4  EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS MSA, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY SOW, AGENCY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, FOR ALL PURPOSES, INCLUDING WITHOUT LIMITATION, THOSE RELATING TO SOFTWARE, DOCUMENTATION, PROFESSIONAL AND OTHER SERVICES, AND THIRD PARTY SOFTWARE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES RELATING TO (A) FREEDOM FROM LATENT OR PATENT DEFECTS, (B) MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (C) ADEQUACY OF CLIENT'S PROCESSOR OR THE PERFORMANCE OF THE SOFTWARE ON CLIENT’S PROCESSOR (D) COMPATIBILITY BETWEEN THE SOFTWARE AND ANY THIRD PARTY SOFTWARE AND (E) LOSS, DELAY OR CORRUPTION OF DATA OR OTHER INFORMATION CAUSED BY THE INTERNET.  AGENCY SHALL HAVE NO LIABILITY TO CLIENT FOR THE PERFORMANCE, NON-PERFORMANCE OR UNAVAILABILITY OF ANY THIRD PARTY SOFTWARE.

4.5 AGENCY SHALL HAVE NO LIABILITY FOR DAMAGES ARISING OUT OF OR RELATING TO: INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH APPLICATION, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY CLIENT OR THIRD PARTIES; CLIENT MODIFICATIONS OF THE SOFTWARE OR CLIENT PROVIDED SOFTWARE; SERVICE INTERRUPTIONS OR LOST OR ALTERED MESSAGES OR TRANSMISSIONS NOT CAUSED BY AGENCY; OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF CLIENT’S, ITS CUSTOMERS, OR THIRD PARTIES’ APPLICATIONS, CONTENT, DATA, PROGRAMS, INFORMATION, NETWORK OR SYSTEMS NOT CAUSED BY AGENCY .

4.6 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS MSA SHALL APPLY: (I) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE; AND (II) WHETHER OR NOT DAMAGES WERE FORESEEABLE.  THESE LIMITATIONS OF LIABILITY SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS MSA.

Section 5.  NON SOLICITATION

Client agrees to not directly or indirectly solicit employees (or former Agency employees within one year of their employment with Agency) in any capacity or attempt to induce any Agency employee(s) who provided any Service(s) in connection with this MSA to leave his or her employment with Agency so long as this MSA remains in effect and for a period of 180 days after termination of this MSA regardless of the reason for any termination or cessation of this MSA.

Nothing in this provision precludes the placement of job advertisements in media of general circulation or other general human resource recruiting efforts and any employment which results there from.

Should direct or indirect solicitation of an employee occur, both parties acknowledge that it would be difficult to ascertain with a degree of certainty the substantial damages that would be incurred by Agency.  In order to avoid such difficulty and in an attempt to approximate the damage that Agency would incur in the event of such violation or breach, if Client takes or participates in any of the actions prohibited above with respect to any of the employee(s) described above, and such employee then leaves Agency to join Client’s employ, Client shall pay to the Agency, as liquidated damages, and not as a penalty or punishment, the sum of $50,000 per employee who so transitions employment. 

Section 6. General

(a) Either party may reference the other on general clients lists or on web pages describing development projects or development partners.  All other uses of the other party’s name require the written consent of the named party.

(b) This MSA may not be assigned or otherwise transferred by Agency without the Client’s prior express written consent, except where essentially all Agency assets are acquired by another company.  Client may freely assign its rights and obligations under this MSA.

(c) No term of this MSA shall be deemed waived, and no breach of this MSA excused, unless the waiver or consent is in writing signed by the party granting such waiver or consent.

(d) If any term or provision of this MSA is determined to be illegal or unenforceable, such term or provision shall be deemed stricken, and all other terms and provisions shall remain in full force and effect, and such illegal or unenforceable term shall be replaced by a legal and enforceable term as close as possible in meaning and effect to such illegal or unenforceable term; provided that the original intent of the parties can be maintained.

(e) This MSA does not make either party an agent or legal representative of the other party and does not create a partnership or joint venture. Both parties are independent contractors and principals for their own accounts.

(f) Sections 2 through 5 shall survive the expiration or termination of this MSA.

(g) The laws of the State of Indiana, excluding its choice of law provisions, shall govern this MSA.

(h) The provisions set forth herein shall apply to all Services performed by Agency for the Client, whether performed prior to or after this MSA is executed, and this MSA shall supersede in all respects all prior agreements, understandings and arrangements of the parties regarding the subject matter provided herein.

 

MUTUAL NON DISCLOSURE AGREEMENT:
 
This Mutual Non-Disclosure Agreement (“NDA”) is made and entered into as of (the "Effective Date"), between Cinergy Growth  LLC an Indiana company having its principal place of business at 4000 W 106th Street, Ste 125-185, Carmel, IN, 46032 and
 
1. Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”) and in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information which the disclosing party desires the receiving party to treat as confidential.
 
2. Confidential Information means any information (including, without limitation documents, computer data, or oral communications) disclosed by either party to the other party, either directly or indirectly, (a) in writing and marked as confidential or similar designation at the time of disclosure; or (b) in any other manner or media if it is identified or marked as confidential upon disclosure; or (c) in any other manner or media if it is treated as confidential upon disclosure and is designated as confidential in a writing delivered to the Recipient within thirty (30) days after disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession.
 
3. Legally Compelled Disclosure. In the event that the receiving party is required to disclose the disclosing party’s Confidential Information pursuant to a valid order by a court or other governmental body or as otherwise required by law, prior to any such compelled disclosure, the receiving party will (i) notify the disclosing party of the legal process, and allow the disclosing party to assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (ii) cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
 
4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and not for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees of the receiving party who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose. Each party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of the disclosing party. Neither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes, software or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder.
 
5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other party have signed a non-use and nondisclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. Neither party shall make any copies of the Confidential Information of the other party unless the same are previously approved in writing by the other party. Each party shall reproduce the other party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
 
6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this NDA concerning the business opportunity.
 
7. No Warranty. ALL CONFIDENTIAL INFORM-ATION IS PROVIDED "AS IS". EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHER-WISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
 
8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of the disclosing party and shall be promptly returned to the disclosing party upon the disclosing party's written request or upon termination of this NDA.
 
9. No License. Nothing in this NDA is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this NDA grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein.
 
10. Term. This NDA covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective Date. A Recipient's duty to protect the Confidential Information disclosed under this NDA expires five (5) years from the date of receipt of Confidential Information (the "Confidentiality Term"). This NDA may be terminated earlier by either party by giving thirty (30) days written notice of termination to the other party. Upon the expiration or termination of this NDA, the obligations of each party shall survive with respect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes publicly known and made generally available through no action or inaction of the receiving party or until five (5) years after the date of initial disclosure of such Confidential Information to the receiving party hereunder ("Confidentiality Period"), whichever occurs sooner. For the avoidance of doubt, upon termination of this NDA, each party's obligation to keep the Confidential Information of the other party confidential for the Confidentiality Period shall apply even in the event where one party is acquired or merged by or into a third party, and such third party shall have the right to enforce this obligation as a third party beneficiary.
 
11. Remedies. Each party agrees and acknowledges that any breach of this NDA may cause irreparable harm to the other party for which monetary damages may be inadequate. Accordingly, the harmed party may be entitled to injunctive or other equitable relief to remedy any threatened or actual breach of this NDA by the other party.
 
12. Miscellaneous. This NDA shall be governed by the laws of the State of Indiana, without reference to conflict of laws principles. This document contains the entire NDA between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this NDA and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this NDA shall have been duly executed and be legally binding upon the respective party in all respects. Any failure to enforce any provision of this NDA shall not constitute a waiver thereof or of any other provision. This NDA may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.
 

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Document name: Cinergy Fractional Integrator Services Contract
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October 3, 2024 12:27 pm ESTCinergy Fractional Integrator Services Contract Uploaded by Michael Kelly - [email protected] IP 207.250.136.179