Terms & Conditions
Consultant Services. Consultant shall assist the Company by providing Company and/or Company’s customer(s) (“Customers”) the services (“Services”) set forth in the applicable Statement of Work (“SOW”).
Compensation. The Company shall pay Consultant compensation for the Services as described in the applicable SOW. Company shall pay all of Consultant’s out-of-pocket expenses incurred in performing the Services, except as otherwise agreed by Consultant and Company from time to time. The Company must pre-approve expenses of the Consultant in amounts that exceed $500.00. All receipts or descriptive statements or accounts must be submitted by Consultant to Company in order for Consultant to receive reimbursement of expenses from Company.
Independent Contractor Relationship. Consultant’s relationship with the Company is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture, or employment relationship. The Parties each acknowledge and agree that Company will not control or direct Consultant or its employees or contractors in any manner in performing the Services beyond the specifications set forth in the applicable SOW. Consultant is solely responsible for completing all required tax returns and payments required under applicable law. Consultant is solely responsible for recording expenses incurred in the course of performing the Services. No part of Consultant’s compensation will be subject to withholding by the Company for the payment of any social security, federal, state or any other employee payroll taxes with respect to any employee, contractor, or other individual used by Consultant to perform the Services. The Company will regularly report amounts paid to Consultant by filing Form 1099-MISC with the Internal Revenue Service as required by law.
Confidential Information.
(a) Confidential Information. “Confidential Information” means any and all technical and non-technical information, whether verbal or non-verbal, including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, concepts, ideas, templates, surveys, pricing information, vendor and employee information, models, inventions, methodologies, know-how, processes, apparatus, equipment, algorithms, software programs, software-as-a-service, software source documents, and formulae related to the current, future and proposed products and services of the disclosing Party (“Disclosing Party”) and includes information relating to the Disclosing Party’s research, employee and contractor information and lists, pricing information, marketing plans, strategies, and information.
(b) Nondisclosure and Nonuse Obligations. The receiving Party (“Receiving Party”) shall not use the Confidential Information except in connection with the activities governed by this Agreement. Consultant shall treat all Confidential Information of the Disclosing Party with the same degree of care as Receiving Party accords to its own Confidential Information, and in any event shall use at least reasonable care. Receiving Party shall immediately notify the Disclosing Party of any unauthorized use or disclosure of the Confidential Information. Receiving Party shall assist the Disclosing Party in remedying any such unauthorized use or disclosure of the Confidential Information. A Party shall not communicate any information to the other in violation of the proprietary rights of any third party.
(c) Exclusions from Nondisclosure and Nonuse Obligations. The ’s obligations under Section 4(b) with respect to any portion of Confidential Information will not apply to any information that (a) is in the public domain through no fault of Receiving Party, (b) is rightfully in Receiving Party’s possession free of any obligation of confidence to any person, (c) is developed by employees or agents of Receiving Party independently of and without reference to any Confidential Information, or (d) is being disclosed by Receiving Party in response to a valid order by a court or other governmental body, or otherwise as required by law, or as necessary to establish the rights of either Party under this Agreement.
(d) Disclosure of Relationship. Notwithstanding anything to the contrary set forth herein, Company authorizes Consultant to use, during the Term, the trademarks, logos, and name of the Company, and disclose the existence of Company’s relationship as a customer, for Consultant’s promotional or marketing purposes, including in any pitch decks, media content, website, marketing materials, press releases, social media and publications for Company’s ordinary business and marketing purposes.
5. Ownership of Property. All materials (including documents, data, agreements, drawings, models, apparatus, sketches, designs, and lists) furnished to Consultant by the Company, under this Agreement (“Company Property”) are the sole and exclusive property of the Company. Consultant shall promptly deliver or destroy the original and any copies of Company Property to the Company at any time upon the Company’s request, except for archival copies. Consultant is authorized to use Company Property provided to Consultant solely for purposes of performing the Services. Notwithstanding anything to the contrary set forth in this Agreement, Company grants to Consultant, an irrevocable, perpetual, worldwide, fully paid-up, royalty-free, sublicensable, and transferable license to use any information or data furnished by the Company to the Consultant solely for benchmarking purposes and to improve Consultant’s offerings and services, so long as the source of such data cannot be identified.
Consultant hereby retains and shall retain all right, title, and interest in and to all Consultant Property. “Consultant Property” means any and all tangible and intangible information, materials, trade secrets, know-how, trade secrets, processes, templates, documentation, methodologies, methods, images, schematics, plans, presentations, written works, ideas, and concepts discovered, conceived, developed, created, owned, or licensed by Consultant (i) prior to or independently from the performance of the Services specifically to meet the particular business needs of Company; or (ii) in the course of performing the Services, including without limitation any results, reports, surveys, presentations and analyses (for purposes of this subpart (ii), the “Deliverables”), unless specifically stated as property to be owned by Company in the applicable SOW; (iii) of a generic nature applicable to any of Consultant’s current or prospective customers; and (iv) all improvements, modifications, and derivative works to any of the foregoing and any and all patent, trademark, trade name, trade dress, trade secret, copyright, and other intellectual property rights in and to any of the foregoing. Consultant hereby grants to Company a non-exclusive, revocable, worldwide, fully paid-up, and royalty-free license and right to use the Deliverables solely for the Company’s ordinary business use. To the extent any other Consultant Property is incorporated into the Deliverables, Consultant hereby grants to Company a non-exclusive, revocable, worldwide, royalty-free, fully paid-up license and right to use such property solely for Company’s use of the Deliverables in accordance with this Agreement. Except for as authorized in connection with the Deliverables, all Consultant Property and copies thereof in the possession, custody, or control of Company shall be immediately returned to Consultant or destroyed upon termination of this Agreement as determined in Consultant’s sole discretion and pursuant to Consultant’s direction. Company shall certify in writing that Company has complied with the foregoing requirements.
6. Representations of Consultant. Consultant represents and warrants that Consultant, its employees, instructors, and/or any persons providing the Services on its behalf (“Consultant Personnel”) (a) that entering into this Agreement and/or the performance of the Services do not conflict or interfere with any contractual or business relationship between Consultant and any third party; (b) shall Perform the Services in compliance with all applicable laws and regulations; and (c) shall perform the Services in accordance with the specifications set forth in the SOW.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 6 ABOVE, THE SERVICES AND WORK PRODUCT ARE PROVIDED BY CONSULTANT ON AN “AS IS” BASIS AND CONSULTANT HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES RELATING TO THE SERVICES AND WORK PRODUCT, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
7. Limitations of Liability. EXCEPT WITH RESPECT TO EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS SET FORTH IN THIS AGREEMENT AND WITH RESPECT TO EACH PARTY’S OBLIGATIONS NOT TO MISAPPROPRIATE OR INFRINGE UPON THE INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES ARISING OUT OF THE ACTIVITIES GOVERNED BY THIS AGREEMENT EVEN IF SUCH PARTY FORESEES OR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES ARISING. IN NO EVENT SHALL CONSULTANT SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY CLAIMS, DAMAGES, OR LOSSES ARISING FROM THE ACTIVITIES GOVERNED BY THIS AGREEMENT IN AN AMOUNT EXCEEDING THE AMOUNTS PAID BY COMPANY TO CONSULTANT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
8. Term and Payment.
(a) Term. This Agreement is effective as of the Effective Date and will expire after the first anniversary therefrom (the “Initial Term”), unless terminated earlier or renewed as set forth in this Agreement. Subject to Section 8(b), this Agreement will automatically renew on the then-current Term (defined below) anniversary of the Effective Date (the “Renewal Term”), unless either Party provides notice of its intent not to renew no less than sixty (60) days’ prior to the Renewal Term. “Term” means the Initial Term and each Renewal Term.
(b) Termination. Either Party may terminate this Agreement for cause upon thirty (30) days’ written notice that is not cured within such thirty (30) day period. Upon termination of this Agreement, the Company shall pay Consultant any amounts owed to Consultant for Services provided in accordance with the specifications set forth in the SOW as of the effective date of termination.
(c) Payment. During the Term, the Company shall pay the Consultant all fees set forth in the SOW for Services and all reasonable out of pocket expenses incurred by Consultant in the performance of the Services. Unless otherwise set forth in the SOW, Company shall pay all monthly invoices for the Services rendered within fifteen (15) days of receipt by Company. All invoices not paid within the fifteen (15) day repayment period shall accrue interest at a rate of 1% of the unpaid balance per month until the invoice is paid in full. Payments are non-refundable, unless due to a material breach of this Agreement by Consultant.
9. Restrictive Covenants. Company agrees that during the term of this Agreement and for a period of two (2) years thereafter, Company shall not, and Company shall ensure its personnel, affiliates, and Customers involved in the activities governed by this Agreement do not, directly or indirectly, either for Company’s benefit or for the benefit of another person or third party (i) solicit or engage any employee or independent contractor of Consultant, including such personnel performing the Services hereunder, without the advance written consent of Consultant in each such instance; or (ii) solicit, cause, or otherwise incent any third party to reduce its contractual or business relationship with Consultant. The foregoing restrictive covenants shall not apply to general job postings and advertisements that do not specifically target Consultant’s employees or independent contractors and in connection to which any such employee or independent contractor initiates an application or similar response without targeted influence from Client or in violation of the foregoing. During the Term and any time thereafter, Client shall not disparage or defame Consultant, including through the use of any alias or pseudonym.
10. Miscellaneous.
(a) Survival. The rights and obligations contained in Sections 2, 3, 4, 5, 7, 8, 9, and 10 will survive any termination of this Agreement.
(b) Notices. Any notice required or permitted by this Agreement must be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; or (iii) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above or such other address as either Party may specify in writing.
(c) Governing Law & Arbitration. This Agreement is governed by the laws of the State of California, without regard to its principles of choice of law. The Parties hereby irrevocably consent to the exclusive jurisdiction of the laws of the State of California and to arbitration before a single arbitrator administered by JAMS, other than with respect to any dispute for which equitable relief may be awarded to a Party.
(d) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby.
(e) Force Majeure. Notwithstanding anything to the contrary contained herein, neither party shall be liable for delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, acts of war or terrorism, pandemics, viruses, loss of data due to technological failure, civil unrest, government actions or other causes beyond its reasonable control. Company shall be responsible for payments in connection with all preparatory work completed in furtherance of the Deliverables or other milestones in the event a Force Majeure event disrupts or halts the Consultant’s work under this Agreement.
(f) Waiver. The waiver by either Party of a breach of any provision of this Agreement by the other Party will not operate or be construed as a waiver of any other or subsequent breach by such other Party.
(g) Entire Agreement. This Agreement constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all Services and other services undertaken by Consultant for the Company. This Agreement may only be modified by mutual agreement of the Parties in writing.