This Consulting Agreement (the “Agreement“) is entered into by and between You (“Client” or “You“) and (“Consultant“, “Company“, “We“, or “Us“). By purchasing the services described herein through the Company’s online cart system, You agree to be bound by this Agreement, which shall commence and be enforceable with respect to You upon the date You purchase the services (the “Effective Date”). The Parties agree as follows:
Services
Consultant shall provide to Client the services (the “Services”) set out in the statement of work, which is attached hereto as Exhibit A (the “Statement of Work”). The Statement of Work shall not be modified or expanded except by written agreement of the Parties.
Fees And Expenses
In consideration of the provision of the Services by the Consultant and the rights granted to Client under this Agreement, Client shall pay a single payment of $80, which is due and payable immediately. Payment to Consultant of such fees shall constitute payment in full for the performance of the Services. There are no refunds.
Representations And Warranties
Consultant warrants that it shall perform the Services using personnel of commercially reasonable skill, experience, and qualifications in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
Consultant represents and warrants that all work-product provided by Consultant shall not infringe upon or violate any third party’s intellectual property rights. All elements included in the work-product shall either be licensed specifically for inclusion in the design, created by Consultant, or otherwise be free of any third-party copyright claims.
Client represents and warrants that the use of any assets or design elements provided by Client to the Consultant shall not infringe upon or violate any third party’s intellectual property rights. All assets and design elements provided by Client shall either be licensed specifically for inclusion in the design, created by the Client, or otherwise be free of any third-party copyright claims. In accordance with this representation and warranty, Consultant shall not be held responsible for any copyright infringement that might arise as a result of the inclusion of elements or assets provided by the Client.
License to Intellectual Property
Upon payment-in-full of all fees due under this Agreement, Consultant grants Client an exclusive, irrevocable, worldwide, unlimited, royalty-free license to use, publish, reproduce, display, distribute copies of, and prepare derivative works based upon all works created pursuant to this Agreement (collectively, the “Deliverables”). To the extent that Consultant uses any preexisting materials in creating the Deliverables, Consultant retains ownership of such preexisting materials and, to the extent necessary, hereby grants to the Client a non-exclusive, irrevocable, worldwide, unlimited, royalty-free license to use, publish, reproduce, display, distribute copies of, and prepare derivative works based upon, such preexisting materials and derivative works thereof.
Confidentiality
From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” is identified as confidential when disclosed, or which the Receiving Party should reasonably know to be confidential (“Confidential Information”).
Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.
The Receiving Party shall protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. The Receiving Party shall not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement and shall not disclose any such Confidential Information to any person or entity not involved in performing the Services under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedies.
Term & Termination
This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services unless sooner terminated for cause as set forth herein.
Either Party may terminate this Agreement for cause, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
- materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 15 days after receipt of written notice of such breach;
- becomes insolvent or admits its inability to pay its debts generally as they become due;
- becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 business days after filing;
- is dissolved or liquidated or takes any corporate action for such purpose;
- makes a general assignment for the benefit of creditors; or
- has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Consultant may terminate this Agreement for cause before the expiration date of the Term on written notice if Client fails to pay any amount when due hereunder and such failure continues for 15 days after Client’s receipt of written notice of nonpayment.
Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Choice of Law & Choice of Forum
The Parties agree that this Agreement shall be construed under the laws of Washington regardless of any choice of law rules.
Each Party irrevocably and unconditionally agrees that any dispute arising under or related to this Agreement shall be resolved exclusively through individual, non-class arbitration to be held in Seattle, Washington under the rules of the American Arbitration Association. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such arbitration and agrees to bring any such dispute only in such forum. Each Party agrees that a final judgment by such arbitration is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Fee Shifting
The Parties agree that the prevailing Party in any action relating to or arising out of this Agreement will be awarded its reasonable attorneys’ fees and costs incurred as a result of such a proceeding.
Miscellaneous Clauses
The Parties further agree:
Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.
Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be 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.
Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, 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.
Assignment. Neither Party may assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party. For the avoidance of doubt, any party may rely upon employees or independent contractors to perform any work required of it in this agreement, but the Party shall remain ultimately responsible for the completion of that work and its quality. Any purported assignment or delegation in violation of this Section shall be null and void.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither Party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Indemnification. Each Party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other Party, its officers, directors, employees, and agents for any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising from the Indemnifying Party’s (i) breach or non-fulfillment of any representation, warranty, or covenant in this Agreement, (ii) breach of this Agreement, or (iii) grossly negligent behavior in connection with this Agreement.
Force Majeure. Neither Party shall be liable or responsible to the other, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of that Party including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic or pandemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. If the event in question continues for a continuous period in excess of 15 days, either Party shall be entitled to give notice in writing to the other to terminate this Agreement.
Exhibit A: Statement of Work
Consultant shall provide the following Services to Client:
This consulting call will only provide for you brainstorming and idea feedback, all done verbally through a virtual call. There are no other services provided and there is no guarantee of working together in the future.