The Company or individual accepting these terms (the “Company”) hereby retains Nectar Bridge, (the “Consultant) and the Consultant agrees, on the terms and conditions provided below, to perform the Services on the Company’s behalf, as described more fully below. The Services may be expanded or modified as agreed upon by the Parties in writing- from time to time.
Of the Consultant. The Consultant agrees to do each of the following:
- Engage in a teleconference or meeting to help assess problems related to QuickBooks, or other business consulting issues.
- Perform the Services in a safe, good, and workmanlike manner by fully-trained, skilled, competent, and experienced personnel using at all times adequate equipment in good working order.
- Fully disclose any and all circumstances that currently exist or that arise during the Term that create a conflict of interest between the Company and the Consultant.
- Communicate with the Company regarding its performance of the Services.
Of the Company. The Company agrees to do each of the following:
- Engage the Consultant as an independent contractor to perform the Services set forth in Memorandums of Understanding attached hereto and/or agreed to in the future.
- Make all payments of compensation in respect of the Services set forth in this Agreement.
- Provide all information and documents reasonably necessary to enable the Consultant to perform the Services.
- Satisfy all of the Consultant’s reasonable requests for assistance in its performance of the Services; provided, however, that notwithstanding the above-listed Company responsibilities, the Consultant has the exclusive responsibility for the performance of the Services under this Agreement.
NATURE OF RELATIONSHIP.
Independent Contractor Status. The Consultant agrees to perform the Services hereunder solely as an independent contractor. The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. The Consultant is and will remain an independent contractor in its relationship to the Company. The Company shall not be responsible for withholding taxes with respect to the Consultant’s compensation hereunder. The Consultant shall have no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Nothing in this Agreement shall create any obligation between either Party and any third party, nor is anything in this Agreement intended to confer any benefit of any kind upon any third party.
The term of this Agreement shall commence on the Effective Date and expire one year thereafter. Unless either Party gives notice of non-renewal at least 30 days prior to the expiration date of the then-current term, this Agreement shall automatically be extended for additional one-year terms until terminated in accordance with the terms hereof. This clause is not intended to obligate either party to continue under any billing or payment agreement, only to stipulate that the terms under which services are performed are continuing unless revoked.
The Parties shall each maintain a policy of comprehensive general liability insurance of at least $1,000,000 in coverage, and such other bonding and liability insurance, including but not limited to professional errors and omissions insurance, directors’ & officers’ liability insurance, and unemployment and workers’ compensation insurance, required by law or usual and customary with respect to the conduct of their activities, in amounts that they have determined are reasonably adequate. Each Party shall, upon request, name the other Party as an additional insured if such coverage is available.
The Consultant agrees, during the Term and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the Company, or to disclose to any person, firm, or corporation without the prior written authorization of the Company, any Confidential Information of the Company. “Confidential Information” means any of the Company’s proprietary information, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to the Consultant by the Company, either directly or indirectly. The Consultant may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with Company personnel or authorized representatives or for any other purpose the Company may hereafter authorize in writing.
REPRESENTATIONS AND WARRANTIES.
The Parties each represent and warrant as follows:
- Each Party has full power, authority, and right to enter into and perform its obligations under the Agreement.
- This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies).
- Entering into this Agreement will not violate the charter or bylaws of either Party or any material contract to which that Party is also a party.
The Consultant hereby represents and warrants as follows:
- The Consultant has the sole right to control and direct the means, details, manner, and method by which the Services required by this Agreement will be performed.
- The Consultant has the right to perform the Services required by this Agreement at any place or location, and at such times as the Consultant shall determine.
- The Services shall be performed in accordance with standards prevailing in the Company’s industry and shall further be performed in accordance with and shall not violate any applicable laws, rules, or regulations, and the Consultant shall obtain all permits or permissions required to comply with such standards, laws, rules, or regulations.
- The Services required by this Agreement shall be performed by the Consultant or the Consultant’s staff, and the Company shall not be required to hire, supervise, or pay any assistants to help the Consultant perform such Services.
- The Consultant is responsible for paying all ordinary and necessary expenses of its staff.
- The Consultant is responsible for providing insurance coverage for itself and its staff.
The Company hereby represents and warrants as follows:
- The Company will make timely payments of amounts earned by the Consultant under this Agreement.
- The Company shall notify the Consultant of any changes to its procedures affecting the Consultant’s obligations under this Agreement at least 30 days prior to implementing such changes.
- The Company shall provide such other assistance to the Consultant as it deems reasonable and appropriate.
Fees. The Company shall pay the Consultant fees as described in the Memorandums of Understanding or invoices executed by the parties from time to time.
No Other Compensation. The compensation set out in said Memorandums of Understanding or invoices shall be the Consultant’s sole compensation under this Agreement.
Expenses. Any internal expenses incurred by the Consultant in the performance of this Agreement shall be the Consultant’s sole responsibility; provided, however, that any and all travel costs, transport and accommodation expenses, and other charges reasonably incurred by the Consultant in performing the Services on behalf of the Company are reimbursable; provided further, however, that any request for reimbursement of such expenses be supported with proper and adequate evidentiary documents in accordance with the Company’s policies.
Taxes. The Consultant is solely responsible for the payment of all income, social security, employment-related, or other taxes incurred as a result of the performance of the Services by the Consultant under this Agreement and for all obligations, reports, and timely notifications relating to such taxes. The Company shall have no obligation to pay or withhold any sums for such taxes.
The Company shall have a perpetual, irrevocable, nontransferable, paid-up right and license to use and copy the work product, reports, analyses, or other materials (“Materials”) provided by the Consultant to the Company pursuant to this Agreement, subject to any confidentiality obligations imposed by this Agreement or otherwise agreed upon between the Parties. All other rights in the Materials, subject to the confidentiality obligations imposed by this Agreement remain with and/or are assigned to the Consultant.
The Company acknowledges that Consultant may develop for itself or others problem solving approaches, frameworks, or other tools or information similar to the Materials and processes developed in performing the Services, and nothing herein shall prohibit Consultant from developing or disclosing such materials or information provided that no information subject to confidentiality obligations is reflected therein.
NO CONFLICT OF INTEREST; OTHER ACTIVITIES.
The Consultant hereby warrants to the Company that, to the best of its knowledge, it is not currently obliged under an existing contract or other duty that conflicts with or is inconsistent with the Consultant’s obligations under this Agreement. During the Term (as defined below), the Consultant is free to engage in other independent contracting activities; provided, however, the Consultant shall not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Consultant’s obligations or the scope of Services to be rendered for the Company pursuant to this Agreement.
DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SERVICES AGREEMENT, THE SERVICES TO BE PROVIDED UNDER THIS SERVICES AGREEMENT ARE FURNISHED AS IS, WHERE IS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
EXCLUSION OF CONSEQUENTIAL DAMAGES.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OF ITS AFFILIATES FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS OR GOODWILL) SUFFERED OR INCURRED BY SUCH OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOLE AND EXCLUSIVE REMEDY.
If Company is dissatisfied with Consultant’s services, upon request the Consultant will refund the previous month’s fee, net of expenses. Except for the assertion of any claim based on fraud or willful misconduct, this shall be the sole and exclusive legal remedy of the Company with respect to this Agreement and the transactions contemplated hereby.
This Agreement may be terminated:
- By either Party on provision of thirty (30) days’ written notice to the other Party, with or without cause.
- By either Party for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within thirty (30) days of receipt of written notice thereof.
- By the Company at any time and without prior notice if the Consultant is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directives of the Company, or is guilty of serious misconduct in connection with performance under this Agreement.
Following the termination of this Agreement for any reason, the Company shall promptly pay the Consultant according to the terms of this Agreement for Services rendered and expenses incurred before the effective date of the termination. The Consultant acknowledges and agrees that no other compensation, of any nature or type, shall be payable hereunder following the termination of this Agreement.
RETURN OF PROPERTY.
Within thirty (30) days of the termination of this Agreement, whether by expiration or otherwise, the Consultant agrees to return to the Company all Company products, samples, models, or other property and all documents, retaining no copies or notes, relating to the Company’s business including, but not limited to, reports, abstracts, lists, correspondence, information, computer files, computer disks, and all other materials and all copies of such material obtained by the Consultant during and in connection with its representation of the Company. All files, records, documents, blueprints, specifications, information, letters, notes, media lists, original artwork/creative, notebooks, and similar items relating to the Company’s business, whether prepared by the Consultant or otherwise coming into its possession, shall remain the Company’s exclusive property; provided, however, that title and ownership in and to the Consultant’s work that does not constitute work product relating to the Services shall remain and belong to and be vested in the Consultant.
Of Company by Consultant. The Consultant shall indemnify and hold harmless the Company and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors, and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements (collectively, the “Claims”) that any of them may suffer from or incur and that arise or result primarily from (i) any gross negligence or willful misconduct of the Consultant arising from or connected with Consultant’s carrying out of its duties under this Agreement, or (ii) the Consultant’s breach of any of its obligations, agreements, or duties under this Agreement.
Of Consultant by Company. The Company shall indemnify and hold harmless the Consultant and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors, and assigns from and against all Claims that it may suffer from or incur and that arise or result primarily from (i) the Company’s operation of its business, (ii) the Company’s breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party, or (iii) the Company’s breach of any of its obligations, agreements, or duties under this Agreement; provided, however, none of the foregoing result from or arise out of the gross negligence or willful misconduct of the Consultant.
USE OF TRADEMARKS.
The Consultant recognizes the Company’s right, title, and interest in and to all service marks, trademarks, and trade names used by the Company and agrees not to engage in any activities or commit any acts, directly or indirectly, that may contest, dispute, or otherwise impair the Company’s right, title, and interest therein, nor shall the Consultant cause diminishment of value of said trademarks or trade names through any act or representation. The Consultant shall not apply for, acquire, or claim any right, title, or interest in or to any such service marks, trademarks, or trade names, or others that may be confusingly similar to any of them, through advertising or otherwise. Effective as of the termination of this Agreement, whether by expiration or otherwise, the Consultant shall cease to use all of the Company’s trademarks, marks, and trade names.
Except in the ordinary course of business, as may be required by law, or for marketing purposes, the Consultant shall not make any statements to any representative of the press, television, radio, or other media with respect to the Company’s business without the prior written consent of the Company.
No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties.
Neither Party may, without the written consent of the other Party, assign, subcontract, or delegate its obligations under this Agreement, except that the Consultant may transfer the right to receive any amounts that may be payable to it for its Services under this Agreement, which transfer will be effective only after receipt by the Company of written notice of such assignment or transfer. Any attempted assignment in contravention of this provision shall be null and void.
SUCCESSORS AND ASSIGNS.
All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective permitted successors and assigns. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the Parties.
A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar unforeseeable event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:
- notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and
- use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.
NO IMPLIED WAIVER.
The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
Any dispute, controversy or claim arising out of or in relation to or connection to this Agreement, including without limitation any dispute as to the construction, validity, interpretation, enforceability or breach of this Agreement, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Rules and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The seat of the arbitration shall be Montgomery, Alabama and the arbitration proceedings shall be conducted in the English language.
This Agreement shall be governed by the laws of the state of Alabama. In the event that litigation or arbitration results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
This Agreement, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.