WHEREAS, Client desires to retain the services of Consultant, and Consultant desires to provide such services; and WHEREAS, the parties desire to enter into a Consulting Contract setting forth the terms and conditions of their agreement and their understandings. NOW, THEREFORE, in consideration of the premises and the mutual covenants, promises, and agreements herein contained and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound hereby,agree as follows:
- Services, Consultant agrees to perform for Client the services listed in the Scope of Services as set forth on Exhibit A attached hereto and incorporated herein by reference (the "Services"). Consultant shall have access to Client's staff and resources as deemed necessary by Consultant, in Consultant's sole and absolute discretion, to perform the Services provided for by this Agreement.
- Invoicing. Consultant shall invoice Client, at Client's email address provided during registration, for the Services rendered, and Client shall pay the amount set forth on such invoices to Consultant, at Consultant's address as set forth in Section 15 hereof, within ten (10) days of receipt thereof.
- Confidential Information,
- In the course of performing the Services referenced herein. Consultant and Client may come into possession of the other parties' financial and/or other business information pertaining to such other parties' business which is not published or readily available to the public, including, but not limited to, trade secrets, research, development, marketing concepts and plans, training, pricing information, sales techniques, lists of customers and vendors and other information pertaining to the business conducted by either Consultant or Client which is received from the agents or employees of either party ("Confidential Information"). Confidential Information shall not include information which is generally known or easily ascertainable by third parties of ordinary skill and competence in computer system design and programming, nor shall it include information already known to the receiving party or disclosed to the receiving party by a third party without violation of a duty of confidentiality to the disclosing party.
- Consultant and Client each acknowledge and agree that Confidential Information is important to, and greatly affects the success of, both parties in a competitive marketplace. Consultant and Client agree that during the course of their relationship and at all times thereafter, Consultant and Client shall hold in the strictest confidence, and shall not use for either parties' personal benefit, or disclose, duplicate or communicate to or use for the direct or indirect benefit of any other person, firm, corporation or entity, any Confidential Information without the prior written consent of the other party, or unless Consultant is required to do so in order to perform the Services, or pursuant to a court order or by operation of law.
- Staff. Consultant is an independent contractor and neither Consultant nor Consultant's staff is or shall be deemed to be employed by Client. Client is hereby contracting with Consultant for the Services described on Exhibit A and Consultant reserves the right to determine the method, manner and mean by which the Services will be performed. Consultant is not required to perform the Services during a fixed hourly or daily time and if the Services are performed at the Client's premises, then Consultants time spent at the premises is to be at the discretion of the Consultant; subject to the Client's normal business hours and security requirements. Consultant hereby confirms to Client that Client will not be required to furnish or provide any training to Consultant to enable Consultant to perform Services required Hereunder. The Services shall be performed by Consultant or Consultant's staff, and Client shall not be required to hire, supervise or pay any assistants to help Consultant perform the Services under this Agreement. Consultant shall not be required to devote Consultant's full lime nor the full time of Consultant's staff to the performance of the services required Hereunder, and it is acknowledged that Consultant has other clients and Consultant offers services to the general public. The order or sequence in which the work is to be performed shall be under the control of Consultant. Except to the extent that the Consultant's work must be performed on or with Client's computers or Client's existing software, all materials used in providing the Services shall be provided by Consultant. Consultant's Services Hereunder cannot be terminated or cancelled short of completion of the Services agreed upon except for Consultant's failure to perform the Agreement's specification as required Hereunder and conversely, subject to Client's obligation to make full and timely payment(s) for Consultant's Services as set forth in Exhibit B. Consultant shall be obligated to complete the Services agreed upon and shall be liable for non-performance of the Services to the extent and as provided in Paragraph 10 hereof. Client shall not provide any insurance coverage of any kind for Consultant or Consultant's staff, and Client will not withhold any amount that would normally be withheld from an employee's pay. Consultant shall take appropriate measures to insure that Consultant's staff is competent and that they do not breach Section 4 hereof. Each of the parties hereto agrees that while Consultant is performing Services under this Agreement and for a period six (6) months following the performance of such Services or the termination of this Agreement, whichever is later, neither party will, except with the other party's written approval, solicit or offer employment as it employee, consultant, independent contractor, or in any other capacity to the other party's employees or staff engaged in any efforts under this Agreement.
- Use of Work Product. Except as specifically set forth in writing and signed by both Client and Consultant, Consultant shall have all copyright and patent rights with respect to all materials developed in the course of performing the Services under this Agreement, and Client is hereby granted a non-exclusive license to use and employ such materials within the Client's business.
- Client Representative. The assigned individual shall represent the Client during the performance of this Agreement with respect to the Services and deliverables as defined herein and has authority to execute written modifications or additions to this Agreement as defined in Section 14.
- Disputes. Any disputes that arise between the parties with respect to the performance of this contract shall be submitted to binding arbitration by the American Arbitration Association, to be determined and resolved by said Association under its rules and procedures in effect at the time of submission and the parties hereby agree to share equally in the costs of said arbitration. The final arbitration decision shall be enforceable through the courts of the state of Consultant's address [15(ii)] or any other state in which the Client resides or may be located. In the event that this arbitration provision is held unenforceable by any court of competent jurisdiction, then this contract shall be as binding and enforceable as if this section 8 were not a part hereof.
- Taxes. Any and all taxes, except income taxes, imposed or assessed by reason of this Agreement or its performance, including but not limited to sales or use taxes, shall be paid by the Client.
- LIMITED WARRANTY LIABILITY. CONSULTANT WARRANTS TO CLIENT THAT THE MATERIAL, ANALYSIS, DATA PROGRAMS AND SERVICES TO BE DELIVERED OR RENDERED HEREUNDER, WILL BE OF THE KIND AND QUALITY DESIGNATED AND WILL BE PERFORMED BY QUALIFIED PERSONNEL. SPECIAL REQUIREMENTS FOR FORMAT OR STANDARDS TO BE FOLLOWED SHALL BE ATTACHED AS AN ADDITIONAL EXHIBIT AND EXECUTED BY BOTH CLIENT AND CONSULTANT. CONSULTANT MAKES NO OTHER WARRANTIES, WHETHER WRITTEN. ORAL OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. IN NO EVENT SHALL CONSULTANT BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, DATA, OR USE BY CLIENT OR ANY THIRD PARTY. REGARDLESS OF WHETHER A CLAIM OR ACTION IS ASSERTED IN CONTRACT OR TORT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO CONSULTANT IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY CONSULTANT. AND IN THE EVENT THIS LIMITATION OF DAMAGES IS HELD UNENFORCEABLE THEN THE PARTIES AGREE THAT BY REASON OF THE DIFFICULTY IN FORESEEING POSSIBLE DAMAGES ALL LIABILITY TO CLIENT SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00) AS LIQUIDATED DAMAGES AND NOT AS A PENALTY.
- Complete Agreement. This agreement contains the entire Agreement between the parties hereto with respect to the matters covered herein. No other agreements, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on behalf of Consultant by any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. Client acknowledges that it is entering into this Agreement solely on the basis of the representations contained herein. In the event of a conflict in the provisions of any attachments hereto and the provisions set forth in this Agreement, the provisions of such attachments shall govern.
- Applicable Law. Consultant shall comply with all applicable laws in performing Services but shall be held harmless for violation of any governmental procurement regulation to which it may be subject but to which reference is not made in Exhibit A. This Agreement shall be construed in accordance with the laws of the State indicated by the Consultant's address [15(ii)].
- Scope of Agreement. If the scope of any of the provisions of the Agreement is too broad in any respect whatsoever to permit enforcement to its full extent, then such provisions shall be enforced to the maximum extent permitted by law, and the parties hereto consent and agree that such scope may be judicially modified accordingly and that the whole of such provisions of this Agreement shall not thereby fail, but that the scope of such provisions shall be curtailed only to the extent necessary to conform to law.
- Additional Work. After receipt of an order which adds to the Services initially provided for as set forth in Exhibit A of this Agreement. Consultant may, at its discretion, take reasonable action and expend reasonable amounts of time and money based on such order. In the event Consultant provides such additional services requested by Client, Client agrees to pay Consultant for such action and expenditure as set forth in Exhibit B of this Agreement for payments related to Services.
- Notices. All notices, requests, demands and other communications Hereunder shall be in writing and shall be deemed to have been duly given when personally delivered or two (2) business days after deposited with the United States Postal Service, certified or registered mail, postage prepaid, return receipt requested, addressed to the address on record.
- Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party. Except for the prohibition on assignment contained in the preceding sentence, this Agreement shall be binding upon and inure to the benefits of the heirs, successors and assigns of the parties hereto.
IN WITNESS WHEREOF, by clicking the agree button client hereto have signed this Agreement as of the date recorded, THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.