PLEASE READ THIS CONSULTING AGREEMENT (“Agreement”) VERY CAREFULLY. BY CHECKING THE BOX NEXT TO THE WORDS “I Accept the Consulting Agreement”, YOU WILL BE SIGNIFYING YOUR AND, WHERE AN ENTITY’S NAME IS PROVIDED IN THE SPACE UNDERNEATH THE WORD “Company”, THAT ENTITY’S, AGREEMENT TO BE BOUND BY THE TERMS SET OUT BELOW. IF YOU OR YOUR ENTITY (“You”) DO NOT AGREE TO THE TERMS OF THIS Agreement, INCLUDING THE WAIVER OF LEGAL RIGHTS AND ASSUMPTION OF OBLIGATIONS DESCRIBED BELOW, DO NOT CHECK THE BOX NEXT TO THE WORDS “I Accept the Consulting Agreement”.
1. Consulting Services.
In accordance with the terms of this Agreement and as an independent contractor, Christopher Stout (“STOUT”) will provide services to You including training, system administration, network administration, desktop support, server support, and other consulting services, including, without limitation, thinking, researching, meeting, preparing, documenting, communicating, emailing, writing, or any other activity performed by STOUT on behalf of or for You (“Work”).
A. Client Assistance. You acknowledge and agree that, in order to perform Work fully, efficiently and in a timely manner, STOUT will require reasonable assistance from You including, without limitation, in a reasonable and timely manner not adversely impacting STOUT’s ability or costs to perform Work: (I) providing STOUT’s representatives with ready access to Your premises and computer systems as required by STOUT in order to carry out Work; and (II) meeting or communicating with STOUT with respect to Work at mutually agreeable times.
B. Relationship. You acknowledge and agree that: (I) STOUT will act as an independent contractor and not as an employee, agent, partner, joint venturer, or fiduciary; (II) neither party intends that an employment, agency, partnership, joint venture, fiduciary, or similar relationship will formed by this Agreement or any performance hereunder; and (III) neither party will have any express or implied right or authority to assume or create any obligations on behalf of, or in the name of, the other or to bind the other to any contract, agreement or undertaking with any third-party.
C. External Services. If You retain personnel other than STOUT’s representatives to provide, or have Your own personnel providing, other services (“External Services”) related to Work, STOUT will have no responsibility or liability for such External Services, and STOUT will not be responsible for any delays or failures to perform to the extent they are caused by any provider of External Services.
2. Fees and Payments.
You will pay STOUT for Work at the hourly rates posted on your invoice (the “Rates”). STOUT may adjust the Rates at its sole discretion at any time, without advance notice to You.
A. Billable Time. The Rates will apply: (I) for Work (“Onsite Work”) performed at Your premises or other location You direct (“Your Location”), from the time when a STOUT representative leaves for Your Location until the time when he or she leaves from Your Location; and (II) for Work not performed at Your Location (“Remote Work”), from the time a STOUT representative commences Work until the time when he or she ceases Work (“Fees”). You acknowledge and agree that all Onsite Visits will result in minimum Fees of at least one (1) hour, and all Remote Work will result in minimum Fees at least one (1) hour.
B. Expenses. You will reimburse STOUT for STOUT’s actual expenses incurred or made in connection with the performance of Work (“Expenses”).
C. Invoices. STOUT will provide You with an invoice by mail or e-mail setting out the reasonable particulars of Fees and Expenses, together with reasonable supporting materials.
D. Payment. You will pay STOUT all Fees and Expenses invoiced, plus applicable taxes, upon the receipt by You of an invoice (“Receipt”). To the extent any Fees or Expenses remain unpaid (“Outstanding Balance”) ten (10) days after Receipt, You will pay to STOUT : (I) interest charged on the Outstanding Balance, at the United States Prime Rate plus 2% per annum, from the date of Receipt until the date the Outstanding Balance is fully paid, and (II) the actual legal fees and reasonable disbursements incurred by STOUT in collecting the Outstanding Balance, notwithstanding any rule by which You would not otherwise be liable for those fees and disbursements.
E. Curtailment. If You fail to pay in full any invoice within ten (10) days of Receipt, STOUT may cease or curtail performance of Work until such payment is made, and STOUT will not be liable for any losses or damage suffered by You as a result of such cessation or curtailment.
3. Term and Termination.
This Agreement will start effective the time you check the box next to the words “I Accept the Consulting Agreement” and press the button labeled “Submit”, and will continue until terminated as provided herein.
A. Mutual Agreement. This Agreement may be terminated at any time, without either party incurring any further liability, penalty, or damages, upon agreement between the parties in writing.
B. Termination By You. You may terminate this Agreement: (I) upon fourteen (14) days’ notice in writing by You to STOUT that no further Work is required to be performed by STOUT; or (II) at any time, if STOUT commits a material breach of an obligation under this Agreement that has a material adverse effect on You (a “Material Breach”) that is not remedied thirty (30) days (the “Cure Period”) after notice in writing by You to STOUT of such Material Breach that explicitly identifies the nature of the breach and adverse effect.
C. Termination By STOUT. STOUT may terminate this Agreement at any time, for any cause, without incurring any further liability, penalty, damages, or obligation to perform further Work.
D. Obligations upon Termination. Upon termination of this Agreement for any reason: (I) You will be liable to pay STOUT for all Fees and Expenses incurred in respect of Work performed up to the time of termination, including and during the Cure Period; and (II) all accrued obligations or liabilities, and the provisions of this Agreement that by their nature are reasonably intended to endure beyond such termination, will remain in effect, including, without limitation, obligations of confidentiality, interpretive provisions, limits of liability and intellectual property rights matters.
4. Warranties, Limitations, and Dispute Resolution.
A. Warranties and Representations by You. You represent and warrant to STOUT as follows:
(I) Authority: You have the authority and right to enter into this Agreement and to perform under it;
(II) Personal Guarantee: The individual executing this Agreement (CHECKING THE BOX NEXT TO THE WORDS “I Accept the Consulting Agreement”) on behalf of an entity irrevocably and unconditionally guarantees the due and punctual payment and performance of all debts, liabilities, and obligations of that entity to STOUT whenever, however, or wherever incurred, and any ultimate unpaid balance thereof.
(III) Legality: to your knowledge, Work will not infringe the intellectual property rights of any third parties and will be in full compliance with all applicable laws, regulations and ordinances;
(IV) Performance: You will perform Your obligations under this Agreement in a reasonable and timely manner when required by STOUT so as not to delay or impair STOUT from performing Work;
(V) Technology: You (a) have the power, authority, and all rights, title, and interests (including all intellectual property rights) to the materials, designs, editorial, text, graphics, audiovisual and multimedia elements, reports, documents, software, formulae, patterns and data (“Content”) affected by Work; (b) will use commercially reasonable efforts to prevent the introduction into STOUT’s property of any virus, worm, virus macro, Trojan horse, or other component designed to permit unauthorized access, disable, erase, or otherwise harm STOUT’s property; (c) will make backups of Your Content and, without limiting any other obligation to indemnify STOUT under this Agreement, will indemnify and hold harmless STOUT if Your Content or any other Content is lost or corrupted; and (d), without limiting any other obligation to indemnify STOUT under this Agreement, will indemnify and hold harmless STOUT for the failures of any backups STOUT has set up;
(VI) Use: You will use Work and anything derived from it solely in accordance with this Agreement and in compliance with any documentation or instructions provided by STOUT; and
(VII) General Indemnification: you will defend, indemnify, and hold harmless STOUT from and against any and all claims, actions, proceedings, suits, causes of action (INCLUDING, WITHOUT LIMITATION, THOSE SOUNDING IN CONTRACT, TORT, AND BREACH OF FIDUCIARY DUTY), liabilities, DEMANDS, DEBTS, LOSSES, damages (actual, consequential, or incidental), settlements, CHARGES, penalties, fines, costs, AMOUNTS PAID TO SATISFY A JUDGMENT, or expenses (including, without limitation, ACTUAL legal fees and REASONABLE litigation DISBURSEMENTS) of every kind, whether known or unknown, (“Claims”) incurred by You or STOUT arising out of this Agreement.
B. Warranties and Representations by STOUT. STOUT PROVIDES Work ON AN “AS IS” AND “AS AVAILABLE” BASIS AND MAKES NO, AND You HEREBY WAIVE ANY, REPRESENTATION OR WARRANTY OF ANY KIND (INCLUDING, without limitation, EXPRESS, IMPLIED OR STATUTORY) AND HOWSOEVER ARISING (INCLUDING, without limitation, THOSE CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE) REGARDING Work OR ANY OTHER SERVICE OR PRODUCT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR CONTINUOUS, UNINTERRUPTED OR ERROR-FREE OPERATION. Without limiting the foregoing, STOUT specifically does not warrant Work (I) against failure of performance including, without limitation, any failure due to computer hardware or communications systems, or (II) will result in any economic or other benefit that You might obtain through Your participation in this Agreement. With respect to any equipment or Content supplied to You, only the manufacturer’s warranty, if any, will apply to any repair or maintenance, unless expressly set forth to the contrary in this Agreement.
C. Exclusions and Limitations of Liability, Remedies, and Claims.
(I) Limitation of Liability: (a) In no event will STOUT be liable for any claims by you or any third party for any special, indirect, incidental, or consequential damages of whatsoever kind and howsoever arising, including, without limitation, loss of business opportunities, profits or revenues, whether or not the possibility of such damages or loss of opportunities, profits or revenues has been disclosed to STOUT in advance or could have been reasonably foreseen by STOUT, (b) STOUT’s liability for any and all claims for direct damages will not, in any event, in aggregate exceed the fees (excluding, for greater certainty, the expenses) actually paid to STOUT under this agreement in the preceding six (6) month period, and (c) STOUT’s liability for all claims arising out of this agreement (including, without limitation, claims sounding in contract, tort, or for breach of fiduciary duty) shall absolutely cease to exist after a period of six (6) months from the date of: (i) substantial performance of work, or (ii) commencement of any statutory limitation period prescribed for the claims, whichever shall first occur, and following the expiration of such period, you will have no claim whatsoever against STOUT.
(II) Limitation of Remedies: Your sole and exclusive remedy for any Claims against STOUT with respect to the quality of Work will be for STOUT to: (a) re-perform the applicable Work until there is no material defect or deficiency of which STOUT was notified by You within seven (7) days of the completion of that portion of Work (and in the absence of such notice, any portion of Work will be deemed to be satisfactory to and accepted by You), or (b) if such re-performance is not commercially feasible in STOUT’s opinion, to refund to you a pro rata amount of the Fees, excluding, for greater certainty, the Expenses, attributable to such the applicable Work.
(III) Limitation of Claims: You will not assert a Claim against STOUT (a) unless You have asserted such a Claim within any required time limitation against all persons who might reasonably be liable therefore, and any waiver by You with respect to a Claim in favor of any of such person or persons shall constitute a waiver by you in favor of STOUT with respect to any Claim against STOUT, or (b) after three (3) months from the date such Claim arose.
D. Dispute Resolution
(I) Reasonable Efforts: Each party will use reasonable commercial efforts to promptly and in a diligent manner resolve any dispute, whether arising during the term of this Agreement or at any time after it, arising in relation to this Agreement by negotiation between the parties within a reasonable period of time.
(II) Continuing Obligations: Both parties will continue the performance of their respective obligations, including, without limitation, any payment obligations, during the resolution of any dispute or disagreement, including during any period of arbitration, unless and until this Agreement is terminated or expires in accordance with its terms and conditions.
(III) Arbitration Procedure: If, despite using reasonable commercial efforts to resolve the dispute by negotiation, a dispute remains unresolved for sixty (60) days, STOUT may, in its sole discretion and without prejudice to its right to assert simultaneously or subsequently any Claim, or seek any relief, in any other forum, refer the dispute for final resolution or determination by arbitration in the state of California. An award of arbitration may be confirmed in a court of competent jurisdiction.
5. Confidentiality, Intellectual Property, and Restrictive Covenants.
(I) Protection. Each party agrees to protect the other party’s trade secrets, financial information (including, without limitation, costs, pricing, profit or margin information) employees’ information (including, without limitation, skills and remuneration), customer lists, suppliers, inventions, know-how, formulas, specifications, instructions, products or devices, research and developments information, testing benchmarks, marketing strategies, future business plans, methods of operation, and any other information that should reasonably be understood to be confidential or proprietary (“Confidential Information”), as well as the Confidential Information belonging to other party’s clients, to the same extent and in the same manner as each party protects its own Confidential Information, but each party agrees (I) that in no event will less than reasonable care be used and (II) to not use the Confidential Information of the other party except in connection with the performance of its obligations under this Agreement.
(II) Permitted Disclosure. Each party will be permitted to disclose: (I) relevant aspects of such Confidential Information to its employees on a need-to-know basis, provided they have undertaken to protect the Confidential Information to the same extent as required under this Agreement, and (II) such Confidential Information that was already known to the receiving party, was disclosed without obligation to keep the information confidential, was publicly known or became publicly known through no-fault of the receiving party, was independently developed by the receiving party without use of the other party’s Confidential Information, or required to be disclosed by a court of competent jurisdiction, in which case the non-receiving party will be granted a reasonable opportunity to obtain a protective order, if such an order is available and necessary to protect the Confidential Information from further disclosure.
(III) Return. Except as set out in this Agreement, neither party grants to the other any right, title or interest (including any intellectual property rights) in or to its Confidential Information. Upon termination of this Agreement or upon the written instruction of the party owning the Confidential Information, the other party will return or destroy the requesting party’s Confidential Information. For this Agreement, a party will be deemed to have destroyed electronic Confidential Information when it executes an application or operating system-level, commercially reasonable delete function on it.
B. Intellectual Property.
(I) License to STOUT: You thereby grant STOUT a royalty-free, non-exclusive limited license to use, copy, distribute, transmit, display, edit, delete, publish and translate such of Your Content to the extent reasonably required by STOUT to perform the Services or to enforce this Agreement.
(II): Indemnity: Without limiting any other obligation to indemnify STOUT under this Agreement, You will indemnify and save harmless STOUT from and against any Claims incurred by STOUT relating to or arising from Your Content, including instances where the Your Content (a) infringes a third-party’s intellectual property rights, or (b) is inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful.
(III) Ownership of Work Product: All Content that is developed, created or acquired (other than from You) by STOUT in the course of performing Work (the “Work Product”) will be owned as follows:
(a) Your Ownership: upon the payment to STOUT of all Fees and Expenses in respect of the Work Product, STOUT will transfer to You all right, title and interest (including all intellectual property rights) in and to the Work Product, subject to the other provisions of this Agreement; and
(b) STOUT License: You hereby grant to STOUT a non-exclusive, royalty-free, fully paid-up transferable right and license to use the Work Product for STOUT’s business purposes.
(IV) Other Content: You agree that you will not acquire any right, title or interest (including any intellectual property rights) to:
(a) any third-party’s Content, other than a license from such third-party delivered to You (for which license You agree that: (i) You, and not STOUT, will have the responsibility to pay licensing fees, and (ii) will be between You and the appropriate third-party); and
(b) STOUT’s Content, other than a license to use STOUT’s Content as contained in the Work Product.
(V) Open Source Acknowledgment: Notwithstanding anything else in this Agreement, You acknowledge and agree that Work and the Work Product may include the modification, development, enhancement, or other use of open source software, and You will receive no right, title, or interest in or to such open source software or Work Product that forms a part thereof, other than, and STOUT reserves for itself all rights granted with respect to such third party Content under, the license for such open source software.
C. Restrictive Covenants. During the term of this Agreement, and for twelve (12) months following its termination, You will not, without STOUT’s prior approval in writing, either directly or indirectly, on Your own behalf or in the service of or on behalf of others: (I) solicit, divert, or hire, or attempt to solicit, divert, or hire, any of STOUT’s officers, partners, employees, contractors, or other representatives, or (II) persuade or attempt to persuade any of STOUT’s officers, partners, employees, contractors, or other representatives to modify, alter, terminate, or not renew their employment or other relationship with STOUT.
A. Governing Law and Jurisdiction. This Agreement is to be governed by and construed in accordance with the laws of the State of California applicable to contracts made and to be performed wholly within such State, and without regard to the conflicts of laws principles thereof. You hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the state and federal courts of California in respect of any dispute under this Agreement, subject only to such a dispute being referred for final resolution or determination by arbitration in the state of California.
B. Entire Agreement. This Agreement sets forth the entire agreement, and supersedes and replaces any and all prior agreements and discussions between the parties, whether written or oral, regarding the subject matter hereof. No changes to this Agreement will be effective unless in writing signed by both parties. This Agreement will be binding upon and inure to the benefit of each party and their respective successors and permitted assigns.
C. Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions will not be affected.
D. Force Majeure. In all cases, despite anything else in this Agreement, STOUT is delayed or prevented from wholly or partly performing its obligations under this Agreement by an event or circumstance beyond STOUT’s reasonable control, including, without limitation, Acts of God, strikes and labor disputes, fires, floods, earthquakes, power or telecommunication failure or interruption, war, riots, Internet slow-downs or failures, cyber-attacks, insurrection or civil disturbances, and personal incapacity including illness or death (“Force Majeure”), STOUT will be relieved of those obligations to the extent, and for the period, that it is affected by such Force Majeure, provided that it (a) notifies You as soon as practicable, and (b) uses commercially reasonable efforts to mitigate the Force Majeure.
E. Assignment. Neither party may assign or transfer this Agreement or any of its rights or obligations under this Agreement except to an Affiliate, an acquirer of all or substantially all of its assets and business, or its successor by way of merger, acquisition, restructuring or similar transaction. However, STOUT may subcontract any part of this Agreement.
F. Non-Waiver. If STOUT does not insist upon or enforce the strict performance of, or exercise any rights or remedies available to it under any provision of this Agreement, such failure will not be construed as a waiver of its right to assert or rely upon any such provision; rather, each provision will be and remain in full force and effect.
G. Independent Legal Advice. Each party agrees that it has read and understands this Agreement and the obligations imposed in it, and that it has been provided with a reasonable chance to seek independent legal advice.
H. Further Acts. Each party will execute and deliver such further and other agreements, documents and instruments and take such further acts as are reasonably necessary or desirable to carry out the intent of this Agreement.