1. SCOPE OF WORK
Consultant agrees to provide the “Services” and supply the “Deliverables” as stated herein. If additional assignments are agreed upon, the parties shall execute an additional Appendix describing each such additional assignment. Consultant represents that its Services shall be performed in a professional manner.
This Agreement shall remain in effect until the completion of all Services specified in all Appendices or as otherwise provided for in this Agreement.
Either party may terminate this Agreement or any particular Appendix if the other commits a material breach and fails to cure such breach within thirty (30) days of written notice. In the event of any such termination by the Company for cause, Consultant shall be paid for all Services that it performed prior to the effective date of termination. In the event of any such termination by the Consultant for cause, Consultant shall be paid the full amount provided for by the terminated Agreement or Appendix.
Upon completion of the Services or any earlier termination, Consultant shall upon request return to Company in their then current condition all data and materials, and any copies of such data and materials, in Consultant’s possession supplied to it in connection with this Agreement.
Company agrees to pay Consultant the Fees set forth in any Appendix hereto and for authorized expenses incurred. Invoices shall be payable upon the schedule outlined in Appendix, and shall be deemed accepted absent receipt of a detailed written statement of the basis for any objection. Pending the settlement or resolution of any dispute, the non‑payment of the disputed items shall not constitute a default of this Agreement provided that Company pays all amounts not in dispute. If Company withholds any payments due to non‑acceptance of any work, Consultant shall have a reasonable opportunity to correct such work. If Consultant disputes Company’s contention that grounds exist for withholding payments, it may suspend the performance of Services until settlement or resolution of the issue.
4. TRAVEL / REIMBURSABLE EXPENSES
All travel expenses by Consultant must be authorized in advance by the Company Project Manager, and shall be in accordance with Company expense guidelines. All expenses associated with ground transportation and meals incurred by the Consultant will be at reasonable rates and Consultant will exercise prudence in incurring such expenses.
5. INDEPENDENT CONTRACTOR
Consultant shall perform all Services hereunder as an independent contractor.
Consultant shall not be treated as an employee of Company for any purpose and Company shall not be responsible for any taxes based on Consultant’s net income or receipts.
6. PROPRIETARY RIGHTS
(a) Consultant’s tools, processes, pre‑existing materials, proprietary or other non-public information, methodologies and derivative works thereof (collectively, the “Consultant Materials”) are owned by Consultant, and any improvements or ancillary products pertaining to the Consultant Materials that are created or developed by Consultant are and shall remain Consultant’s property.
(b) Subject to payment in full of the fees specified herein, the Deliverables and all improvements to Company materials and processes, specifications and all other documentation, designs, methods, writings, compilations of information (hereinafter referred to in the aggregate as “Developments”) that are conceived, designed, prepared, produced or developed by Consultant, either alone or in concert with the Company: (1) in the course of and as a result its engagement hereunder; or (2) based upon non-public knowledge or information learned or gained from Company; or (3) that result from the use of Company’s facilities, personnel, or materials, are and shall be the property of Company.
Consultant represents that the Services, the Deliverables, the Developments, and any information, material, designs, specifications or instructions provided by Consultant, do not infringe on any patent, copyright, trade secret, trademark or any other third party intellectual property right in any country where Consultant performs Services or delivers Deliverables or Developments. Consultant will defend, indemnify and hold Company harmless from and against any breach of the foregoing representation, provided that Company promptly notifies Consultant in writing of the claim, and cooperates with Consultant in, and grants Consultant sole authority to control, the defense and any related settlement.
Consultant will pay the cost of such defense and settlement and any costs, attorneys’ fees and damages awarded by a court of competent jurisdiction against Company. If such a claim is made, Consultant may procure the right for Company to continue to use the Services, Deliverables, or the Developments, or may modify or may replace same. If use of the Services, Deliverables or Developments is enjoined, Consultant will modify or provide substitute Services, Deliverables or Developments acceptable to Company or refund Company for payments made for such Services, Deliverables or Developments.
The foregoing shall not apply to any claim based on Company Proprietary Information, knowledge, information or materials which were incorporated into, or the use of which resulted in, the Services, Deliverables or Developments which are the subject of any such claim.
Consultant agrees that all information it learns from Company in the course of its engagement which is not publicly known and which was not known by Consultant prior to this engagement is and shall remain the exclusive, confidential and proprietary information of Company (collectively, “Proprietary Information”). Consultant agrees to take reasonable steps to safeguard the confidentiality of Proprietary Information and of Developments in the same manner as it protects its own Proprietary Information, and agrees to not use the Proprietary Information and Developments other than for the Company’s benefit.
9. LIMITATION OF LIABILITIES
OTHER THAN FOR A CLAIM RESULTING FROM A PARTY’S INTENTIONALLY WRONGFUL ACT OR GROSS NEGLIGENCE, COMPANY AND CONSULTANT SHALL HAVE NO LIABILITY FOR ANY CLAIM RELATING TO THIS AGREEMENT IN EXCESS OF THE FEES AND EXPENSES PAID TO CONSULTANT, EXCEPT (A) PURSUANT TO CONSULTANT’S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 7; AND (B) THE COMPANY’S PAYMENT OBLIGATIONS HEREUNDER. IN NO EVENT SHALL COMPANY AND CONSULTANT BE LIABLE TO EACH OTHER FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF COMPANY AND CONSULTANT HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. PROJECT MANAGEMENT AND REVIEW MEETINGS
Company shall assign a Company employee (the “Project Manager”) to be responsible for monitoring the Consultant’s work, for review and approval of invoice documentation and as the agent for notices required or given under this Agreement. Consultant’s direct interface with Company shall be the assigned Company Project Manager. Unless otherwise agreed, Consultant shall attend review meetings with Company Project Manager as needed during the term of the Agreement to discuss the progress of the Services.
11. WORK POLICY
Consultant agrees to observe the working hours, work rules, building security measures and holiday schedule of Company when on Company premises. Consultant further agrees to employ all reasonable efforts to meet Company’s assignment deadlines and documentation standards, as applicable.
12. GENERAL PROVISIONS
(a) Paragraph headings are for convenience only and shall not be a part of the Terms and Conditions of this Agreement.
(b) Failure by either party to enforce any obligation by the other party, to claim a breach of any term of this Agreement or to exercise any power agreed to hereunder will not be construed as a waiver of any right, power or obligation under this Agreement, will not affect any subsequent breach, and will not prejudice either party as regards any subsequent action.
(c)If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction, the remaining terms and provisions of this Agreement shall remain unimpaired and in full force and effect.
(d) Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other. Consultant shall be fully responsible for its subcontractors.
(e) Articles 2, 3, 6, 7, 8, and 9 of this Agreement shall survive the performance hereof and shall survive the completion and termination of this Agreement.
(f)This Agreement shall be governed by the substantive laws of the State of California. Both parties consent to jurisdiction and venue in the state and federal courts in the State of California sitting in Orange County.
(g) No modification, waiver or amendment of any term or condition of this Agreement shall be effective unless it shall be in writing and signed by the parties.