This Consulting Agreement (the “Agreement”) is made and entered on by and between A-Team Systems, LLC, (“Company”) located at 1819 SW 5th Ave. #130, Portland, Oregon 97201, U.S.A. and you (“Client”) collectively referred to as the “Parties”.
- SERVICES:Client shall engage Company for work to be performed or installed on the client’s server(s), an ISP’s server(s), or on Company’s hosting platform.
- AUTHORIZATION: If applicable, Client hereby authorizes Company to access the servers located at the locations specified in the form below (the “ISPs”) and any other servers required. Client further instructs the ISPs to provide Company with access to any directories or other programs, which need to be accessed for the completion of the Services pursuant to this Agreement. Client guarantees that it has lawful access and authorization to grant access to these servers.
- FEES AND EXPENSES: In consideration for the Services, Client shall pay Company the fees set forth on the order form (which are exclusive of any applicable taxes) and any out-of-pocket expenses that Company incurs providing the Services that Client authorizes in advance. Unless otherwise set forth on the order form, the payment terms are due 30 days from the date that Client receives an invoice for such fees and expenses. If Client fails to notify Company in writing no later than 7 days after receipt of an invoice from Company about any dispute Client has with such invoice, the invoice (and fees and expenses indicated in the invoice) shall be deemed accepted by Client. The fees do not include the production of any additional software, work or other assets not described in order form. Client shall reimburse Company for any fees or expenses it incurs in collecting from Client any amounts due and owing under this Agreement. In the event that Client fails to pay any invoice within 10 days of the date that the invoice is due, Company may charge Client a late fee of $25 per week until the invoice is paid in full.
- TAXES: Client shall be responsible for all taxes, fees, assessments and other charges imposed by any governmental entity resulting from Company providing the Services to Client, including, without limitation, privilege, value added, excise, sales, use, occupational and other taxes or amounts in lieu thereof paid or payable by Company (other than any income tax).
- TIME OF COMPLETION:
- Any completion dates for the Services set forth by Company are estimates only and Company will use commercially reasonable efforts to complete any such Services by the completion dates set forth by Company. However, Client acknowledges that delays in Company receiving materials, information or feedback from Client or a third party may delay completion of the Services.
- Unless otherwise expressly set forth on by Company in writing for any Services, Services are complete on the earlier of: i) approval of the Services by Client after the work that has made up the Services is ready on the Client’s or the ISP’s host computer, or ii) two days after the work that has made up the Services is ready on Client’s or ISP’s host computer for approval by Client if Client has not notified Company of its approval or disapproval of such work.
- INDEPENDENT CONTRACTOR:Company’s relationship to Client is that of independent contractor. Company is in no respect an agent, employee or legal representative of Client and shall have no power or authority to bind Client or to assume or create any obligation or responsibility, express or implied, on behalf, or in the name of, Client. Client will not treat Company or its employees or subcontractors as a Client employee for any purpose, including, but not limited to, the Federal Insurance Contributions Act, the Social Security Act, the Federal Unemployment Tax Act, income tax, workers’ compensation, unemployment, life, travel, health, group or disability insurance, pension or profit sharing plans, or any other expense customarily withheld or paid by an employer for an employee.
- The Parties agree that Company may use subcontractors to fulfill certain service obligations contained in this Agreement; provided that, Company shall remain responsible for the acts or omissions of such subcontractors as if such subcontracted activities had been performed by Company. Furthermore, Company shall obligate such subcontractors to comply with the terms and conditions of this Agreement.
- Nothing provided herein shall create any obligation on the part of Client to pay any monies to any subcontractor, third party or vendor, nor create any relationship in contract or otherwise, express or implied, between any such subcontractor, third party or vendor and Client.
- NON-SOLICITATION:During the term of this Agreement and for one year after termination of this Agreement, Client shall not solicit, induce, entice or otherwise hire for employment or for any other contractual purpose any employee or subcontractor provided to Client by Company. For the purposes of this clause, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement, and the hiring of any such employees or subcontractor who freely responds thereto shall not be a breach of this clause.
- Company represents and warrants that:
- It will perform the Work with reasonable care and skill; and
- Except to the extent based on any Client materials or specifications (including, but not limited to any data and trademarks or service marks), the Services and the materials that Company provides to Client pursuant to this Agreement will not infringe or violate any intellectual property rights of any third party.
- DISCLAIMER OF WARRANTY:
- THE WARRANTIES SET FORTH IN THIS SECTION 9 ARE THE ONLY WARRANTIES MADE BY COMPANY. COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
- COMPANY DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SERVICES IT PROVIDES OR THAT THE OPERATION OR USE OF THE WORKS OR DELIVERABLES THAT ARE GENERATED FROM THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY THIRD PARTY SOFTWARE. ANY THIRD PARTY SOFTWARE PROVIDED TO CLIENT BY COMPANY IS EXPRESSLY PROVIDED UNDER THE TERMS AND CONDITIONS OF THE SOFTWARE VENDOR’S STANDARD SOFTWARE LICENSE. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY EQUIPMENT OR HARDWARE THAT IS PROVIDED OR USED UNDER THIS AGREEMENT. TO THE EXTENT APPLICABLE, ANY SUCH EQUIPMENT OR HARDWARE IS EXPRESSLY PROVIDED UNDER THE TERMS OF HARDWARE OR THE EQUIPMENT VENDOR’S WARRANTY AGREEMENT, IF ANY.
- Company represents and warrants that:
- LIMITATION OF LIABILITY:NEITHER PARTY SHALL UNDER ANY CIRCUMSTANCES BE RESPONSIBLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, TREBLE, STATUTORY OR CONSEQUENTIAL DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES SUCH AS LOSS OF REVENUE, PROFIT OR USE OR COST OF CAPITAL), ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT, THE SERVICES PERFORMED PURSUANT TO THIS AGREEMENT OR ACTIONS OR INACTIONS OF THE PARTIES THAT ARISE OR RELATE TO THAT PARTY’S PERFORMANCE UNDER THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO SUCH PARTY IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY SUCH OTHER PARTY. UNDER NO CIRCUMSTANCES SHALL COMPANY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, STRICT LIABILITY, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO COMPANY..
- FORCE MAJEURE: No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental entity; and (g) national or regional emergency.
- CONFIDENTIALITY: The Parties acknowledge that, in the course of the dealings hereunder, each may acquire information about the other, their respective business activities and operations, technical information and trade secrets, all of which are proprietary and highly confidential (“Confidential Information”). Each Party shall hold all Confidential Information of the other Party in confidence and shall not, without prior written consent of the disclosing Party, disclose or make available to any person or entity, or use for its own or any other person’s or entity’s benefit, other than as necessary in performance of its obligations under this Agreement, any Confidential Information of the disclosing Party except for information: (i) which may be disclosed to third parties pursuant to the terms of this Agreement; (ii) which is or becomes generally known to the public through no fault of the receiving Party; (iii) obtained on a non-confidential basis prior to negotiations leading to this Agreement; (iv) independently developed outside the scope of this Agreement and without misappropriating the disclosing Party’s Confidential Information; or (v) lawfully disclosed by or to a third party or tribunal pursuant to a subpoena, court order or other legal process. Each Party shall safeguard the other Party’s Confidential Information to the same extent that it safeguards its own confidential materials or data relating to its own business, but always at least with a reasonable degree of care. Company may disclose the Confidential Information of Client to its subcontractors to the extent necessary for the subcontractors to perform the Services, but Company shall remain liable for any breach of this Section 12 by Company’s subcontractors.
- INTELLECTUAL PROPERTY:
- Client retains all intellectual property rights in any of its materials and data that it supplies to, or provides access to, Company and grants Company a non-exclusive license to use such materials and data during the term of this Agreement to the extent required to perform Company’s obligations under this Agreement
- Company shall retain all intellectual property rights in any works it develops in connection with the performance of the Services and all of its pre-existing tools, programs and materials that it uses in performing the Services, and Company hereby grants to Client a non-exclusive license to use such works and pre-existing tools, programs and materials for their intended purposes during the term of this Agreement.
- For the avoidance of doubt, Company may use certain proprietary programs and tools to provide the Services. Company shall retain all intellectual property rights in these custom proprietary programs and tools. In the event that this Agreement is terminated or expires (or Client changes the service level) Company reserves the right to remove Client’s access to these proprietary programs and tools and this may cause the Client to lose certain functionality that Client had while this Agreement was in effect or at the prior service level.
- Company shall have the right to display screenshots, graphics and other design elements that it develops as part of the Services as examples of its work in its respective portfolios so long as it does not include Client’s Confidential Information.
- REFUSAL OF CERTAIN SERVICES: In the event that Client asks Company to perform services or take other actions that Company reasonably determines is inappropriate for Company to perform such services or take such actions, Company may refuse to perform such requested services or take such requested actions. In addition, in the event that Client is in breach of this Agreement, Company may withhold some or all of the Services as reasonably determined by Company.
- TERM AND TERMINATION
- This Agreement shall commence on the agreed on Date and shall continue, unless terminated earlier in accordance with the terms of this Agreement, until the work has been completed or Client no longer has pre-purchased time remaining.
- In the event this Agreement is terminated, Client shall pay all amounts to Company for all Services performed through the date of termination.
- Notwithstanding any termination of this Agreement, each Party reserves all other rights and remedies hereunder and otherwise permitted by law or equity that have accrued at the date of termination and does not waive any obligation of either Party by reason of the exercise of such termination option.
- RETURN OF CONFIDENTIAL INFORMATION: Upon termination of this Agreement, Company will promptly return to Client (or certify to Client that it has destroyed) all of Client’s Confidential Information that Company has in its possession.
- Amendment. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.
- Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Attorneys’ Fees. In the event that any Party institutes any legal suit, action or proceeding against the other Party to enforce the covenants contained in this Agreement (or obtain any other remedy in respect of any breach of this Agreement), the prevailing Party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs
- Survival. The following provisions of this Agreement shall survive any termination or expiration of this Agreement: Sections 4, 6, 8, 9, 10, 12, 13, 15, 16 and 17.
- Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Cumulative Remedies. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Entire Agreement. This Agreement and all documents and agreements referred to in this Agreement supersede all prior or contemporaneous understandings, agreements, negotiations and discussions, whether oral or written, between the parties concerning this subject matter and constitute the entire agreement between the parties with regard to this subject matter. The provisions of this agreement may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings.
- Non-Reliance. The Parties have not relied upon any promises, representations, warranties, agreements, covenants or undertakings, other than those expressly set forth in this Agreement
- Notice. The Parties shall give any notice or other communication required or permitted in this agreement in writing and shall deliver any notice by personal delivery, overnight delivery service, certified mail, return receipt requested, postage prepaid, regular U.S. mail, postage prepaid or email. A notice is deemed given upon delivery of the notice in person, on the day after the notice is deposited with an overnight delivery service, two days after the notice is deposited with the United States Postal Service certified mail, return receipt requested, postage prepaid, two days after the notice is deposited with the United States Postal Service regular U.S. mail, postage prepaid, or immediately when sent by Email, and addressed or emailed as follows:
A-Team Systems, LLC
1819 SW 5th Ave. #130
Portland, OR 97201, U.S.A.
Client: To the Notice Address provided on the order form.
From time to time, either Party may designate another address for all purposes of this Agreement if it gives to the other Party not less than three days advance notice of the change of address in accordance with the provisions of this Agreement. The failure or refusal of a Party to accept receipt of a notice or other communication under this Agreement shall not invalidate the notice.
- Governing Law. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to Delaware’s conflict of law principles.
- Assignment. Except as expressly set forth in this Agreement, neither Party shall assign, delegate, subcontract or otherwise transfer this Agreement or any of its rights or obligations under this Agreement without the other Party’s prior written consent. Any attempt by a party to do so without the other Party’s written consent will be null and void.