Consulting Agreement

This Consulting Agreement (the "Agreement") is made and entered on by and between A-Team Systems, LLC, ("Company") located at 109 East 17th Street Suite 80, Cheyenne, WY 82001, U.S.A. and you ("Client") collectively referred to as the "Parties".

  1. SERVICES:Client shall engage Company for systems administration and/or troubleshooting to be performed or installed on the client’s server(s), an ISP’s server(s), or on Company’s hosting platform.
  2. 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.
  3. COMPENSATION: For the Services contemplated in this Agreement, the Client will pay Company a fee of $165 per hour, with a one hour minimum, rounded up to the quarter hour for subsequent hours. This fee does not include the production of any additional software, work or other assets. Payment shall be made in advance. Client agrees to reimburse Company for any fees or loss due to collection action on overdue amounts. Client agrees that resolving server and systems issues may not be possible due to circumstances outside Company’s control including but not limited to prior loss of data, hardware or network failures, or server resource limitations. Company will inform Client as soon as such a situation is apparent. Client is still liable for time spent even if the issue is not resolved.
  4. TIME OF COMPLETION: Company will take all reasonable actions to complete the Services within 2 business days. However, Client acknowledges that delays in Company receiving materials from Client or a third party may slow completion of the Services, estimated in the immediately preceding sentence, due to A-Team’s work process scheduling that is dependent upon receipt of Client feedback/materials. If requests for information, materials or feedback is made by Company to Client and Company does not receive a satisfactory reply within 1 business day, then Company may adjust the Completion of Services date in proportion to the amount of delay created by Client to the initial request from A-Team.

    For the avoidance of doubt, "Completion of the Services" means the earlier of: i) approval of the Work by Client after the Work is ready on the Client’s or the ISP’s host computer, or ii) 2 days after the Work 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 the Work.
  5. EXPENSES: Client agrees to reimburse Company for all reasonable expenses authorized in advanced by Client and incurred in connection with this Agreement including, but not limited to, special graphics, special photography, special software, special fonts, etc.
  6. INDEPENDENT CONTRACTOR: Company is an independent contractor and not an employee of the Client, and, unless otherwise stated in this Agreement, is not entitled to any of the benefits normally provided to the employees of Client.
  7. SUB-CONTRACTORS:
    1. The parties here to agree that Company may use third-party or sub-contractors to fulfill certain service obligations contained in this Agreement.
    2. Nothing provided herein shall create any obligation on the part of Client to pay or to see to the payment by Company of 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.
  8. NON-SOLICITATION:
    1. Client shall not solicit, induce, entice or otherwise hire for employment or for any other contractual purpose any employee or independent contractor provided to Client by Company. Client agrees that any such solicitation, inducement, enticement or employment shall constitute a material breach of this Agreement and Client agrees that it shall pay Company liquidated damages in the amount of $25,000.00 for a violation of this non-solicitation clause.
    2. During the term of this Agreement and for a period of one (1) year after the expiration or termination of this Agreement for any reason, Parties agree that they shall not:
      1. Directly or indirectly induce any customers or clients of the other party to patronize the Covenanting Party or any similar business.
      2. Directly or indirectly request or advise any customer or client of the other party to withdraw, curtail, or cancel such customer’s or client’s business with the other party.
      3. Directly or indirectly disclose to any other person, partnership, corporation or association, the names or addresses of any of the customers or clients of the other party.
      4. Induce or attempt to induce any employee, agent or former employee or agent of the other party to leave the employ of the other party, or hire any such employee, agent or former employee or agent in any business or capacity.
      5. Make any unsubstantiated statement disparaging the other party, any member, principal, officer, director, shareholder, employee or agent thereof, to any person, firm, corporation or other business organization whatsoever.
  9. CHANGE PROCEDURES: No change, modification, termination or discharge of this Agreement, its Schedules or any part hereof, in any form whatsoever, shall be valid or enforceable unless it is in writing and signed by both parties.
  10. WARRANTIES:
    1. Company represents and warrants that:
      1. It will perform the Work with reasonable care and skill; and
      2. The Work and the materials provided under this Agreement will not infringe or violate any intellectual property rights or other right of any third party.
    2. DISCLAIMER OF WARRANTY:
      1. THE WARRANTY SET FORTH IN PARAGRAPH 10 IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY COMPANY. COMPANY EXPRESSLY DISCLAIMS, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL OTHER EXPRESS WARRANTIES AND ALL DUTIES, OBLIGATIONS AND WARRANTIES IMPLIED IN LAW, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SERVICES IT PROVIDES (SERVICES AND SYSTEMS RELATED THERETO) WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OR USE OF THE SYSTEM, IF ANY, WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SYSTEM, IF ANY, WILL BE CORRECTED. COMPANY’S LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF COMPANY ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES AND THE SYSTEM. THE PARTIES AGREE THAT THE SYSTEM’S FAILURE TO PERFORM IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS SHALL NOT BE CONSIDERED A FAILURE OF THE ESSENTIAL PURPOSE OF THE REMEDIES CONTAINED HEREIN. EXCEPT FOR THE ABOVE LIMITED WARRANTY, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND/OR THE SYSTEM IS WITH THE CLIENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY SOFTWARE. ANY SOFTWARE PROVIDED TO CLIENT BY COMPANY IS EXPRESSLY PROVIDED UNDER THE TERMS AND CONDITIONS OF THE SOFTWARE VENDOR’S STANDARD SOFTWARE LICENSE. THE SYSTEM IS EXPRESSLY PROVIDED “AS IS.” COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY EQUIPMENT OR HARDWARE. ANY EQUIPMENT OR HARDWARE PROVIDED TO CLIENT BY COMPANY IS EXPRESSLY PROVIDED UNDER THE TERMS OF HARDWARE OR THE EQUIPMENT VENDOR’S WARRANTY AGREEMENT, IF ANY.
  11. LIMITATION OF LIABILITY: COMPANY SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE AGGREGATE LIABILITY OF COMPANY FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM, SHALL BE LIMITED TO THE MONIES PAID TO COMPANY BY CLIENT FOR THE SERVICES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, CLAIMS FOR FAILURE TO EXERCISE DUE CARE IN THE PERFORMANCE OF THE SERVICES HEREUNDER, CONSUMER FRAUD, AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES, EXCLUSIONS AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND/OR OTHER APPLICABLE LAWS. THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.
  12. TAXES: Unless imposition and payment thereof is being contested by Client in good faith and by appropriate proceedings, Client shall be responsible for all taxes, fees, assessments and other charges imposed by any federal, state, or local government or governmental agency resulting from this Agreement, including, without limitation privilege, excise, sales, use, occupational and other taxes or amounts in lieu thereof paid or payable by Company (other than any income, franchise, privilege or like taxes).
  13. FORCE MAJEURE: Neither party shall be liable to the other for any delay or failure to perform due to acts of God or causes beyond its reasonable control. Performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay. Without limiting the generality of the foregoing, an event rendering Client’s network inoperable or inaccessible to Company shall be subject to the terms of this Section 11.a.
  14. SURVIVAL: THE FOLLOWING PROVISIONS OF THIS AGREEMENT SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT: 2,3,5 THROUGH 8, 10 THROUGH 17, 19, 20 THROUGH 24, 26 AND 27.
  15. CONFIDENTIALITY: Company acknowledges that they may have access to Client’s confidential and proprietary information. Such confidential information may include, without limitation: i) business and financial information, ii) business methods and practices, iii) technologies and technological strategies, iv) marketing strategies and v) other such information as Client may designate as confidential ("Confidential Information"). Company agrees to not disclose to any other person (unless required by law) or use for personal gain any Confidential Information at any time during or after the term of this Agreement. Confidential Information will not include information that is in the public domain, unless such information falls into the public domain through Company’s unauthorized actions.
  16. INTELLECTUAL PROPERTY: Copyright to the finished assembled work produced by A-Team as described in this Agreement is owned by A-Team. Upon final payment of this contract, the Client shall be assigned all rights to use the Work design, graphics, software and text contained in the finished assembled Work. Rights to the source code, work-up files, and computer programs are specifically not transferred to the Client, and remain the exclusive property of A-Team. For the avoidance of doubt, A-Team uses its custom proprietary programs developed over many years to provide the services anticipated by this Agreement. These custom proprietary program’s ownership are specifically not transferred to Client. In the event that Client terminates services or changes to a service level that does not include "maintenance and monitoring" A-Team reserves the right to remove Client’s access to the custom proprietary software and this may cause the Client to lose functionality of the Client’s website. A-Team retains all copyright and associated intellectual property rights in all work related to this Agreement even if the work was performed prior to the execution of this Agreement. A-Team retains the right to display screenshots, graphics and other design elements as examples of their work in its respective portfolios.
  17. REPRESENTATIONS:
    1. Client represents and warrants that the text, graphics, and photographs provided to Company for the Work are owned or licensed by Client, and that Client is authorized to use and display such items in the manner contemplated by this Agreement. Client shall be solely responsible for the Work and materials on the Work and the validity of copyrights, trademarks and ownership claimed by Client. Client agrees to indemnify and hold Company harmless from and against any claim, loss, damage, expense or liability (including attorney’s fees and costs) that may result in whole or in part, from: i) any infringement or any claim of infringement, of any trademark, copyright, trade secret, or negligence arising from any of the text, graphics, and photographs provided by Client, ii) any claim by a third party regarding any services or products sold or otherwise distributed by Client, its employees or agents, or iii) any claim, suit, penalty, tax or tariff arising from Client’s use of the internet or electronic commerce.
    2. Company represents that Company is unable to warrant that the functions contained in the Work will be uninterrupted or error-free. The entire risk as to the quality and performance of the Work is with the Client. In no event will Company be liable to the Client or any third party for any damages, including, but not limited to, service interruptions caused by Acts of God, the Hosting Service or any other circumstances, any lost profits, lost savings or other incidental, consequential, punitive, or special damages arising out of the operation of or inability to operate the Work.
  18. TERMINATION OF CONTRACT: In the event Client cancels or terminates this Agreement before Completion of the Services, Company shall be paid by Client pro rata for all completed work and the payment of any authorized expenses.
  19. RETURN OF PROPERTY: Upon termination of the Services, Company will promptly return to Client all drawings, documents and other tangible manifestations of the Confidential Information (and all copies and reproductions thereof).
  20. BINDING EFFECT: The covenants and conditions contained in the Agreement shall apply to and bind the Parties and the heirs, legal representatives, successors and permitted assigns of the Parties.
  21. CUMULATIVE RIGHTS: The Parties’ rights under this Agreement are cumulative, and shall not be construed as exclusive of each other unless otherwise required by law.
  22. WAIVER: The failure of either party to enforce any provisions of this Agreement shall not be deemed a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement. A waiver may only occur pursuant to the prior written express permission of an authorized officer of the other party.
  23. SEVERABILITY: If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
  24. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. This Agreement may be modified in writing and must be signed by both Client and Company.
  25. NOTICE: Any notices required or permitted to be given hereunder shall be given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt requested, (c) by facsimile (Fax) or (d) by e-mail, and such notices shall be addressed as provided herein below. Any notice shall be effective only upon delivery, which for any notice given by facsimile shall be deemed delivered upon receipt of a send confirmation. If notice is sent by email, delivery shall be evidenced by a reply or acknowledgement.
  26. GOVERNING LAW AND ARBITRATION:
    1. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of New Hampshire.
    2. Except with respect to actions by either Party seeking equitable or declaratory relief, any action arising in whole or in part under or in connection with this Agreement or the subject matter hereof will be referred to and finally resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, by one arbitrator, who will be agreed upon by the Parties. If the Parties are unable to agree upon a single arbitrator within 30 days following the date arbitration is demanded, three arbitrators will be used, one selected by each Party within 10 days after the conclusion of the 30 day period and a third selected by the first two within 10 days thereafter.
  27. ASSIGNMENT: This Agreement and the rights and duties of A-Team hereunder may be assigned or delegated by A-Team to any other person or entity controlled by or bound by contract with A-Team without the prior written consent of Client. This Agreement, or any or all of Client’s rights hereunder, may not be assigned by Client to any third party, transferee, successor, or assign of Client, without the consent of A-Team.