April 4, 2023
M3 Vendor Terms and Conditions
These M3 Vendor Terms and Conditions (“T&Cs”) and the SOW (defined below, including any supplemental terms either referenced herein or in the SOW (collectively referred as “Agreement”), apply exclusively to all (i) services, including professional/consulting services (“Services”), (ii) physical items as well as software, data, scripts or code (“Goods”), and (iii) any Goods conceived, produced or developed in connection with the Services (“Deliverables”) (Services, Goods, and Deliverables collectively referred to as “Products”) provided by the vendor under a SOW (“Vendor”) to M3 Accounting Services, Inc. (“M3”), unless there is a separate written agreement between the parties in place. Any other terms and conditions presented by Vendor are expressly rejected. In the event of any conflict or inconsistency, the order of precedence is (1) the SOW, and (2) the T&Cs. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior oral and written communications.
1. ORDERS AND DELIVERY
1.1. “SOW” means (i) order forms, or (ii) statements of works executed by the parties or (iii) any other document as agreed by the parties, specifying the type, scope, and qualification of the Products, the respective fees and additional conditions (if any), or (iv) purchase orders issued by M3 which incorporate the T&Cs by reference and Vendor accepts such purchase order.
1.2. Time of Essence. Delivery dates specified in the SOW are of the essence. M3 shall not be liable to accept any part of such Products which are delayed and may, at its option, cancel the SOW. If Vendor encounters or anticipates difficulty in meeting the delivery schedule, Vendor shall promptly notify M3 in writing.
1.3. Change Order. M3 may, at any time, request additions, deletions, or revisions to the Products ordered and all approved requests will be incorporated as change order to the SOW via a separate written amendment. Vendor will not provide any Products outside of the SOW until a change order has been executed.
1.4. Shipping. All Goods are to be suitably packed for shipment to secure the lowest transportation and insurance rates and to meet carrier requirements. Risk of loss shall be borne by Vendor until delivery.
1.5. Acceptance. All Goods and Deliverables will be subject to inspection and testing, and if, in M3’s sole discretion, Products found not in accordance with the specifications, instructions, samples, or the Agreement shall be subject to rejection, return and back charge as appropriate, together with the necessary costs of handling and shipping. M3’s payment of all or any part of the fees prior to such inspection and testing of the Products shall not constitute a waiver. If Vendor fails to promptly correct defects in or replace nonconforming Goods and Deliverables, M3 may make such corrections or replace such Products and charge Vendor any costs incurred. Depending on the item’s nature and subject to M3’s sole discretion, partial acceptance may be possible. M3 shall be entitled to offset any amounts of non-conforming Goods and Deliverables from fees owing to Vendor.
1.6. Services. Except as agreed otherwise, Vendor shall perform the Services at the office location of M3. Performance of Services must be evidenced by appropriate activity reports submitted by Vendor and approved by M3.
1.7. Personnel. Vendor employees, approved subcontractors, agents, and/or other representatives that provide Products hereunder (“Personnel”) shall remain in the employment or at the direction of Vendor. No provision of this Agreement will be deemed to create a contractual relationship between M3 and any Personnel and Vendor shall be directly responsible for all Products performed by Personnel. M3 may request in its sole discretion Personnel to be removed or replaced, and Vendor shall promptly replace said Personnel with new Personnel acceptable to M3.
1.8. Subcontracting. Vendor shall not contract for any part of the Products without the prior written consent by M3, however, no approval hereunder shall relieve Vendor of any of its obligations. Upon M3’s request, Vendor shall provide for each subcontractor all relevant information to ensure compliance with this Agreement.
1.9. Insurance. Vendor shall carry and maintain for the term of valid SOWs, at its own expense, all necessary insurance coverage adequate for the defense and indemnification of claims, demands, or actions arising out of or taken by Vendor, or its Personnel based on this Agreement, including but not limited to general business liability and professional liability insurance, and shall provide M3 with evidence of upon request.
1.10. Right to Audit. Vendor shall ensure, and ensure that its subcontractors shall, maintain accurate and transparent books, accounts, records, and other documentation (“Records”) related to the Products to demonstrate compliance with applicable laws and regulations and this Agreement. The Records shall be kept in reasonable detail and accuracy. All Records will be maintained for three (3) years after the termination or completion of the Agreement. If any audit being conducted raises issues, such Records shall be maintained for as long as required for the resolution of the issues. Authorized representatives of M3 (including third party auditors) shall have the right to conduct on-site audits of Vendor to the extent necessary to determine Vendor’s compliance under this Agreement.
2.1. Pricing. Fees shall be firm and not subject to adjustment or variation unless specifically approved in writing by M3. Vendor is not entitled to any other compensation or fees for Products that are not identified in the SOW. M3 shall have no obligation for reimbursement of any expenses, including travel expenses, incurred by Vendor unless such expenses have been approved.
2.2. Invoicing. If not otherwise agreed in the SOW, payment is due forty-five (45) days following M3’s receipt of an undisputed invoice. Each invoice must specify the SOW number, M3 entity name, invoice number and date, amount due, and (if applicable) Taxes. Vendor must provide supporting documentation along with the invoice and other information that M3 may reasonably request to verify the accuracy of any fees. M3 may require a financial statement from Vendor at any time.
2.3. Taxes. All fees payable by M3 to Vendor under this Agreement are exclusive of all sales and use, goods and services, value added, excise, or any other taxes, levies, and assessments of any jurisdiction (“Taxes”). Vendor shall invoice M3 for all Taxes that Vendor is required to collect from M3 related to this Agreement under applicable law, rule, or regulation. If any deduction or withholding is required by law to be made by M3, M3 is expressly directed to deduct from all fees payable to Vendor and remit to the applicable governmental authority all withholding taxes and source deductions, as may presently, or after this Agreement takes effect, be imposed by law or regulation as an obligation upon M3 with respect to any such amounts payable to Vendor.
All invoices issued by Vendor to which M3 applied such deduction or withholding are considered to be paid in full to Vendor. VENDOR IS LIABLE FOR AND SHALL, WITHOUT LIMIT AND AT ITS OWN COST, INDEMNIFY, DEFEND AND HOLD COMPANY HARMLESS FROM AND AGAINST ALL CLAIMS RESULTING FROM VENDOR’S FAILURE TO PAY TAXES THAT ARE VENDOR’S RESPONSIBILITY.
3. INTELLECTUAL PROPERTY
3.1. “IP Rights” mean any worldwide common law and statutory rights, whether arising under the applicable law or any other state, country, jurisdiction, government, or public legal authority, associated with (i) patents, utility models, invention disclosures and applications therefor, (ii) trade secrets, or proprietary information, (iii) copyrights; (iv) trademarks and service marks, (v) industrial designs, (vi) rights in databases and data collections; (vii) economic rights of authors and inventors, however denominated, (viii) rights to apply for, file for, certify, register, record, perfect or any similar or equivalent rights to any of the foregoing, provided those rights or applications (where such applications can be made) are capable of protection in the applicable jurisdiction.
3.2. Ownership. Unless otherwise specified in a SOW, Products provided are “Works made for hire” and to the extent permissible under applicable law, Vendor assigns to M3 all rights, title, and interest in the Products, free from any third-party rights and M3 owns all right, title and interest in and to such Products. Vendor agrees to execute such documents necessary to implement and carry out the provisions of this section. Passage of title of the Products shall not relieve Vendor of its obligations under this Agreement.
3.3. Perpetual Rights. Where an ownership assignment is not possible, Vendor grants to M3 a full, paid-up, exclusive, assignable, sublicensable, perpetual, irrevocable, worldwide license to the rights conceived, produced, or developed by Vendor in connection with the Products to permit M3 to use, copy, modify, distribute, and fully exploit such Products.
3.4. Pre-Existing IP. Notwithstanding anything to the contrary herein, Vendor shall retain ownership of all IP Rights created or acquired by Vendor outside the scope of this Agreement (“Pre-Existing IP”). If the Products include or are covered by any Pre-Existing IP, Vendor grants M3 a license as set out in Section 3.3, except that such license shall be non-exclusive.
3.5. Upon completion of the Products or when a SOW expires or is terminated, Vendor shall provide M3 with all material and information that is needed for full compliance with this Section.
4. WARRANTY, LIABILITY, INDEMNIFICATION
4.1. Warranty. Vendor represents, warrants, and covenants that (i) Products are unencumbered and performed in a professional and workmanlike manner using reasonable skill, care and diligence, in accordance with industry standards and conform to the specifications, free from defects; (ii) Products do not infringe any third party rights; (iii) no Goods or Deliverables are subject to an open source, public-source, freeware or other third party license agreement that requires M3 to disclose or license or to be made available at no charge any material; (vi) Vendor, its Personnel and the Products comply with applicable local, state and federal laws, rules, regulations and ordinances, (iv) Vendor and its Personnel comply with M3’s Code of Conduct.
4.2. Remedy. Vendor shall immediately replace or repair, free of charge, Products which are defective in materials or workmanship or otherwise not in conformity with the requirements of the SOW. Unless Vendor corrects or replaces such Product, M3 may at its sole discretion (i) require the delivery of such Goods and Deliverables at a reduction in price, or (ii) terminate the SOW for breach and recover expenses for obtaining substitute supplies. The warranty period will be extended for which the defective Products cannot be used for their intended purpose.
4.3. Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, M3 SHALL HAVE NO LIABILITY TO COMPANY, BY REASON OF THE TERMINATION OF THIS AGREEMENT OR OTHERWISE, FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR ANY LOSS OF PRESENT OR PROSPECTIVE PROFITS OR REVENUES OR LOSS OF ACTUAL OR ANTICIPATED FEES, WHETHER OR NOT M3 WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, M3’s AGGREGATE CUMULATIVE LIABILITY FOR DAMAGES TO COMPANY RESULTING IN ANY WAY FROM THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNTS M3 HAS PAID COMPANY IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THIS LIMIT.
4.4. Indemnity. Vendor shall indemnify, defend, and hold harmless M3, its affiliates, and their respective directors, officers, shareholders, employees, and agents as well as M3 customers (“Indemnitees”) against all claims and actions asserted or commenced by a third party (“Claim”) and all losses, damages, liabilities, costs and expenses of any kind, including, without limitation, reasonable attorneys’ fees, that are incurred by the Indemnitees in connection with or resulting from such Claim, if such Claim is based upon or results from: (i) any breach by Vendor of this Agreement or any of Vendor’s representations, warranties, or obligations herein, (ii) an allegation that the Product infringes third party rights, or (iii) personal injury or property damage made by or on behalf of Vendor or its Personnel, except those claims resulting solely from the Indemnitees’ gross negligence or willful misconduct. Vendor shall provide replacement or modified Goods or Deliverables that do not infringe third-party rights or shall acquire M3’s right to continue to use the Goods or Deliverables in the form in which they gave rise to the Claim. The Indemnitees will have the right to participate in the defense of all Claims and may appear (at their own expense) with counsel. Vendor shall have the right to fully-control the defense of each Claim; provided that it shall not agree to any settlement that imposes any financial or specific performance obligation on, or admission of liability by, an Indemnitee without such party’s prior express written consent.
5. CONFIDENTIAL INFORMATION, DATA PRIVACY AND SECURITY
5.1. “Confidential Information” means all information which M3 protects against unrestricted disclosure to others, furnished by M3 or its representatives to Vendor or its Personnel that (i) is identified as confidential, internal, or proprietary, or (ii) is by its nature recognizable as confidential or is disclosed in a manner that it may be reasonably inferred to be confidential, internal, or proprietary.
5.2. Obligations. Vendor shall use Confidential Information solely for performing its obligations or exercising its rights under this Agreement, keep all Confidential Information in strict confidence; and not disclose, cause, or permit disclosure of the Confidential Information to any third party, except as permitted under this Agreement. Vendor shall limit disclosure of any Confidential Information to its Personnel that have a “need to know” to carry out the Product provision and ensure that such Personnel have signed an agreement containing disclosure and use provisions. The above restrictions on the use and disclosure of Confidential Information shall not apply to any Confidential Information that: (i) has become generally available to the public through no act or omission of the Vendor; (ii) at the time of disclosure to Vendor was known free of restriction; (iii) is lawfully acquired free of restriction by the Vendor; or (iv) is independently developed by Vendor without reference or access to the Confidential Information. Vendor may disclose Confidential Information to the extent required by law, regulation, court order or regulatory agency if Vendor gives M3 prior notice of such disclosure (if legally permitted) and provides assistance in contesting the required disclosure. Vendor shall disclose only that portion of the Confidential Information which is legally required to be disclosed and shall request that disclosed Confidential Information is treated confidential.
5.4. Data Processing. Vendor shall not process, and M3 does not authorize the processing of any personal data by Vendor unless a data processing agreement is executed between the parties.
5.5. Security. Vendor shall use and maintain generally accepted industry standard administrative, physical, and technical safeguards for protection of M3’s security, confidentiality, and integrity.
6. TERM AND TERMINATION
6.1. Termination for Breach. M3 may terminate a SOW, in whole or in part, immediately (i) if Vendor fails to comply with any material term of this Agreement after M3 has provided Vendor fifteen (15) days’ prior written notice specifying the nature of such default and Vendor fails to cure such default within such fifteen (15) day period; or (ii) of Vendor’s dissolution, liquidation, insolvency or bankruptcy.
6.2. Termination for Convenience. M3 may, by providing at least fifteen (15) days’ prior written notice stating the extent and effective date, terminate any SOW for convenience in whole or in part. In such event, Vendor shall immediately cease all services (including shipment of Products). M3 shall pay Vendor that portion of fees related to the Products completed and/or delivered to M3’s satisfaction prior to such termination, together with Vendor’s actual, reasonable, verifiable direct costs, if any, incurred in closing-out such services, less any payments made prior to such termination. Vendor shall not be paid for any Products performed after receipt of a notice of termination. Vendor shall have no further claim against M3 on account of such termination.
6.3. Effect of Termination. All provisions of this Agreement pertaining to warranties, taxes, audits, intellectual property, confidentiality, indemnity, limitations of liability, choice of law, and jurisdiction shall survive completion and acceptance of any Products or the termination of a SOW. In addition, no later than ten (10) days after termination or non-renewal, Vendor shall return or certify destruction of all Confidential Information in its possession or control of M3.
7.1. Notices. All notices must be in writing and addressed to the parties as set out in the SOW by certified or registered mail, courier, or email.
7.2. No Publicity. Vendor shall not disclose or use M3’s name, trademarks or logos and shall refrain from making or causing to be made, any public announcement, advertisement, or news release of any kind concerning this SOW, without express written permission of M3.
7.3. Exports. Vendor acknowledges that the Product delivered under this Agreement may be subject to the export and import control laws of various countries (“Export Laws”). Both parties will comply with the Export Laws in the performance of this Agreement. Vendor will cooperate with M3 as reasonably necessary to ensure compliance with Export Laws and agrees to provide all information reasonably requested by M3 for the purposes of export and import licensing procedures.
7.4. No Waiver. M3’s failure or delay in exercising any of its rights shall not constitute a waiver of such rights unless expressly waived in writing.
7.5. Relationship. The parties are independent contractors, and nothing contained in this Agreement shall be construed to constitute as agents, partners, joint ventures, or otherwise as participants in a joint undertaking, that would give a party the express or implied right, power, or authority to create any duty or obligation of the other party.
7.6. Force Majeure. Neither Party shall be in default of this Agreement because of a delay or failure in performance of its obligation resulting from any cause beyond its reasonable control, provided it gives reasonably prompt notice to the other Party and uses reasonable efforts to mitigate the delay or failure.
7.7. No Assignment. Vendor may not assign its rights or delegate its duties under this Agreement without the prior written consent of M3.
7.8. Severability. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be interpreted in a manner that best reflects the parties’ intentions, and any other provisions will remain in full force and effect.
7.9. Law and Jurisdiction. This Agreement and the subject matter thereof shall be governed and construed according to the laws of Georgia, without reference to conflict of laws principles. Any claims are subject to the exclusive and appropriate federal, state, or local court having jurisdiction in Atlanta, Georgia. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods. Notwithstanding the foregoing, M3 may bring a claim for equitable relief in any court with proper jurisdiction.