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GENERAL TERMS AND CONDITIONS FOR SERVICES

Captivea LLC - Version 2 - Last Updated 08/02/2024 

Captivea LLC 's general terms and conditions of services (“Terms”)

CAPTIVEA provides consulting services, software integration, training, and custom software development for professionals in the field of management software and corporate information systems. The purpose of these General Conditions is to define the terms and conditions for the provision and delivery of services, licensing of software, add-on modules, and the Software Solution made available to the Client.

1. APPLICABILITY

These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by Captivea, LLC (“Service Provider”) to the customer (“Customer”) (Service Provider and Customer are collectively the “parties”).

The accompanying order confirmation (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, the Terms shall govern, unless the Order Confirmation expressly states that the Order Confirmation controls, with reference to section of the Terms that it modifies. The parties are not relying on anything other than as stated in this Agreement.

These Terms prevail over any of Customer’s general terms and conditions, regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.

2. SERVICES

Service Provider shall provide the services to Customer as described in the Order Confirmation (the “Services”) in accordance with these Terms. 

3. PERFORMANCE DATES

Service Provider shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only.

4. CUSTOMER’S OBLIGATIONS

Customer shall:

1. cooperate with Service Provider in all matters relating to the Services and provide such access to Customer’s premises, and such accommodation and other facilities as may reasonably be requested by Service Provider, for the purposes of performing the Services; 
2. respond promptly to any Service Provider request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement;
3. provide such customer materials or information as Service Provider may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and 
4. obtain and maintain all necessary licences and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

5. CUSTOMER’S ACTS OR OMISSIONS

If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay. 

6. FEES AND EXPENSES; PAYMENT TERMS; INTEREST ON LATE PAYMENTS; SECURITY DEPOSIT

In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation. 

Customer agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services. 

Customer shall pay all invoiced amounts due to Service Provider on receipt of Service Provider’s invoice. Customer shall make all payments hereunder in US dollars by wire transfer. 

In the event payments are not received by Service Provider within 10 days after becoming due, Service Provider may:

1. charge interest on any such unpaid amounts at a rate of 18% per annum; and
2. suspend performance for all Services until payment has been made in full.

Security deposit clause for monthly invoiced services on a deferred payment basis: 

1. Security deposit for monthly invoiced services:

For monthly invoiced services, a security deposit will be required from the client.

The security deposit must be equivalent to at least 100% of the estimated total amount for the month.

The payment of the security deposit will be executed through any means of payment accepted by the company.

2. Adjustment of the security deposit :

If the invoiced amount during the month exceeds the initial security deposit, the security deposit will be revised.

This revision aims to ensure that the security deposit will be equal to at least 100% of the total monthly invoice amount.

3. Billing of the security deposit and regular monthly billing:

At the beginning of the service period, the security deposit will be invoiced to the client. 

Subsequently, the monthly billing system will come into effect.

4. At the end of the contract:

Upon termination of the contract, the refund of the security deposit will be made by allocating service hours equivalent to the initial amount of the guarantee.

The request for the refund of the deposited guarantee must be initiated within 12 months following the termination to be considered valid. Beyond this period, the request will be deemed void and cannot be accepted. 

7. TAXES

Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder. 

8. INTELLECTUAL PROPERTY

All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services, including any items identified as such in the Order Confirmation (collectively, the “Deliverables”) shall be owned by Service Provider.

9. CONFIDENTIAL INFORMATION

All non-public, confidential or proprietary information of Service Provider, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Service Provider to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of the Service Provider. Confidential Information does not include information that is:

1. in the public domain;
2. known to Customer at the time of disclosure; or
3. rightfully obtained by Customer on a non-confidential basis from a third party.

Customer agrees to use the Confidential Information only to make use of the Services and Deliverables.

Service Provider shall be entitled to injunctive relief for any violation of this Section.

10. REPRESENTATION AND WARRANTY

Service Provider represents and warrants to Customer, to the best of its knowledge, that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.

The Service Provider shall not be liable for a breach of the warranty set forth in Section 11(a) unless Customer gives written notice of the defective Services, reasonably described, to Service Provider within five days of the time when Customer discovers or ought to have discovered that the Services were defective.

Subject to Section 11(b), Service Provider shall, in its sole discretion, either:

1. repair or re-perform such Services (or the defective part); or
2. credit or refund the price of such services at the pro rata contract rate.

The remedies set forth in section 11(c) shall be the customer’s sole and exclusive remedy and service provider’s entire liability for any breach of the limited warranty set forth in section 11(a).

11. DISCLAIMER OF WARRANTIES

Except for the limited warranty set forth in section 11(a) above, service provider makes no warranty whatsoever with respect to the services, including any (a) warranty of merchantability; or (b) warranty of fitness for a particular purpose; or (c) warranty of title; or (d) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise. 

12. LIMITATION OF LIABILITY

In No Event Shall Service Provider Be Liable To Customer Or To Any Third Party For Any Loss Of Use, Revenue Or Profit Or Loss Of Data Or Diminution In Value, Or For Any Consequential, Incidental, Indirect, Exemplary, Special Or Punitive Damages Whether Arising Out Of Breach Of Contract, Tort (Including Negligence) Or Otherwise, Regardless Of Whether Such Damages Were Foreseeable And Whether Or Not Service Provider Has Been Advised Of The Possibility Of Such Damages, And Notwithstanding The Failure Of Any Agreed Or Other Remedy Of Its Essential Purpose.

In No Event Shall Service Provider’s Aggregate Liability Arising Out Of Or Related To This Agreement, Whether Arising Out Of Or Related To Breach Of Contract, Tort (Including Negligence) Or Otherwise, Exceed Two Times The Aggregate Amounts Paid Or Payable To Service Provider Pursuant To This Agreement In The Three-month Period Preceding The Event Giving Rise To The Claim.

The limitation of liability set forth in Section 13(b) above shall not apply to:

1. liability resulting from Service Provider’s gross negligence or willful misconduct and
2. death or bodily injury resulting from Service Provider’s negligent acts or omissions.

13. TERMINATION

In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:

1. fails to pay any amount when due under this Agreement; 
2. has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
3. becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

14. INSURANCE

During the term of this Agreement and for a period of one year thereafter, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $2,000,000 with financially sound and reputable insurers. Upon Service Provider’s request, Customer shall provide Service Provider with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Service Provider as an additional insured. Customer shall provide Service Provider with 30 days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Service Provider’s insurers and Service Provider. 

15. WAIVER

No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

16. FORCE MAJEURE

The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

17. ASSIGNMENT

Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. Service Provider may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of service provider’s assets without customer’s consent.

18. RELATIONSHIP OF THE PARTIES

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

19. NO THIRD-PARTY BENEFICIARIES

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

20. GOVERNING LAW

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida.

21. SUBMISSION TO JURISDICTION 

Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted only in the federal courts of the United States of America or the courts of the State of Florida in each case located in the City of Orlando and County of Orange, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

22. NOTICES

All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

23. SEVERABILITY

Each provision of this Agreement is intended to be severable. If any court of competent jurisdiction determines that one or more of the provisions of this Agreement, or any part or portion thereof, is or are invalid, illegal or unenforceable, only that provision, term or clause shall be affected, and such invalidity, illegality or unenforceability shall not affect or impair any other provision of this Agreement, and this Agreement shall be given full force and effect while being construed as if such invalid, illegal or unenforceable provision had not been contained within it. If possible, any unenforceable or invalid clause in this agreement shall be modified to show the original intent of the parties.

24. SURVIVAL

Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidentiality, Governing Law, Insurance, Submission to Jurisdiction, Survival, Limitation of Liability, Waiver, Relationship of the Parties, No Third-Party Beneficiaries, and Notices.

25. AMENDMENT AND MODIFICATION

This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.

26. LITIGATION FEES AND COSTS

In the event of a dispute arising from, under, or related to this Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its litigation fees. The costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable.

The litigation fees also include, not exhaustively, attorney fees, collection fees, notarial fees, court fees, etc. The prevailing party will turn against the defending party and recover the totality of the amount of the litigation fees.

27. JURY TRIAL WAIVER

The parties shall and they do now waive any right to a trial by jury in any action, proceeding, or counterclaim brought by either of them against the other on any matters whatsoever arising out of, relating to, or in any way connected with this agreement or the subject matter hereof.

28. ARBITRATION

All cases and controversies arising out of or related to this agreement will be finally resolved exclusively by arbitration administered by the American arbitration association in accordance with the United States arbitration act and conducted at Orlando, Florida in accordance with the arbitration rules. Judgment upon the award rendered may be entered in any court having jurisdiction, or application may be made to that court for a judicial recognition of the award or an order of enforcement thereof, as applicable. the parties may bring an action to enforce any award granted under this section.

29. NON-SOLICITATION OF COMPANY’S EMPLOYEES/CONTRACTORS

Customer recognizes that Service Provider engages in the business of Enterprise Resource Planning solutions, and Enterprise Resource Planning solutions through Odoo and Acumatica, in Florida, throughout the United States, and internationally for businesses, which is highly competitive. Throughout the Agreement between Service Provider and Customer, and for 12 months after the Agreement ceases, Customer shall not, directly or indirectly, in any capacity, or in conjunction with, any other person, corporation, or other entity hire or pirate away, recruit, attempt to recruit, induce, solicit, influence or attempt to induce or influence any employee or contractor of the Service Provider to terminate his or her employment or contractual relationship with the Service Provider. Customer recognizes that a violation of this section would cause immediate and irreparable harm to the Service Provider. Accordingly, Customer acknowledges and agrees that if it breaches this provision, it shall be conclusively presumed that irreparable injury would result to the Service Provider for which there would be no adequate remedy at law. As such, the Customer agrees that the Service Provider shall be entitled to any proper injunction, including but not limited to temporary, preliminary, final injunctions, temporary restraining orders, and/or temporary protective orders, without bond or security, to enforce this section and Agreement in the event of breach or threatened breach by the Customer, in addition to any other remedies available to the Service Provider at law or in equity. Customer recognizes that Service Provider’s restriction promotes its legitimate business interests, and that the restrictions are fair and reasonable. This restriction is independent of any other obligation between the Service Provider and Customer. Notwithstanding the forgoing, in the event of a breach of this section, Service Provider will additionally be entitled to liquidated damages from Customer in the stipulated amount of one-year’s salary for each employee of Service Provider that Customer solicits. The liquidated damages are not intended as a penalty, but are intended:

1. to reflect the fact that actual damages may be difficult and impractical to ascertain,
2. to allocate risk among us, and
3. enable us to perform the work.