CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (the "Agreement"), is by and between You (hereinafter "Client"), and InPower, LLC a Virginia corporation, with a principal office at 713 North Courthouse Road, Suite 200, Richmond, VA 23236 (hereinafter the "Consultant").
WHEREAS, Client finds that the Consultant is willing to perform certain work hereinafter described in accordance with the provisions of this Agreement; and
WHEREAS, Client finds that the Consultant is qualified to perform the work, all relevant factors considered, and that such performance will be in furtherance of Client's business.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and intending to be legally bound, the parties hereto agree as follows:
1. SCOPE OF WORK.
1.1 Relationship of Parties. Client and Consultant are independent contractors, and neither is an authorized agent or representative of the other. Consultant is not, nor shall its personnel be considered to be an employee, joint venturer, partner or agent of Client for any purpose whatsoever. Consultant shall have no authority to make any contract, representation or obligation in the name of Client or otherwise bind Client or any of its affiliates. All personnel of Consultant performing services hereunder shall be employed exclusively by Consultant, and Client will provide no employee benefits including, but not limited to health, life, or disability insurance, to Consultant's personnel. Consultant shall comply with all provisions of the Fair Labor Standards Act, the Federal Insurance Contributions Act, the Social Security Act, the Federal Unemployment Tax Act, the Internal Revenue Code, applicable state laws on income tax, unemployment tax, workers’ compensation, wage payment, minimum wage and overtime and all other applicable laws. Consultant shall carry such insurance that is required by law and good business practices. Client reserves the right to require specific insurance coverages in any of the Services.
2. PAYMENT AND INVOICING TERMS.
2.1 Invoicing.
(a) Invoices will be billed one month in advance for the retainer amount and will be submitted the first day of every month by the Consultant for payment by Client. Payment is due upon receipt and is past due fifteen (15) calendar days from receipt of invoice. If Client has any valid reason for disputing any portion of an invoice, Client will so notify the Consultant within fifteen (15) calendar days of receipt of invoice by Client, and if no such notification is given, the invoice will be deemed valid. The portion of the Consultant's invoice that is not in dispute shall be paid in accordance with the procedures set forth herein.
(b) A finance charge of 1.5% per month on the unpaid amount of an invoice, will be charged on past due accounts. Payments by Client will thereafter be applied first to accrued interest and then to the principal unpaid balance. Any attorney fees, court costs, or other costs incurred in collection of delinquent accounts shall be paid by Client. If payment of invoices is not current, the Consultant may suspend performing further work.
2.2 Taxes. All amounts payable pursuant to this Agreement are exclusive of taxes. Accordingly, there will be added to any such amount payable by Client the monetary sum equal to any applicable taxes required to be charged by applicable law (whether local,state or federal) which shall be added to each invoice and paid in accordance with Section 2.1 hereof.
3. DISCLOSURE OF INFORMATION
Both parties shall hold in strict confidence all information (including, without limitation, technical data, data, customer lists, business plans, business models, trade secretes, know-how, ideas and concepts) disclosed to it by the other party (“Confidential Information”) during the performance of this Agreement. It is agreed by the parties hereto that all Confidential Information disclosed by either party whether such Confidential Information is disclosed in writing or verbally shall, except as specified below, be considered confidential and the property of the disclosing party. The term “Confidential Information” shall not include:
a. Information which at the time of disclosure pursuant to this Agreement has been previously published and is in the public domain;
b. Information which is, at the time of disclosure under this Agreement, already known to the receiving party without restriction on disclosure;
c. Information which is, or subsequently becomes, rightfully and without breach of this Agreement, in the receiving party’s possession without any obligation restricting disclosure;
d. Information which is independently developed by the receiving party without breach of this Agreement; or
e. Information which is explicitly approved for release by written authorization from the disclosing party.
f. Information which is obligated to be produced by law, under order of a court of competent jurisdiction or other similar requirement of a governmental agency, so long as the party required to disclose the information provides the other party with prior written notice of any required disclosure pursuant to such law, order, or requirement.
Both parties agree to use its best efforts to maintain confidentiality and not disclose to any third party Confidential Information it has received and agree to limit disclosure of Confidential Information to those of its employees or agents as necessary to carry out the purposes of this Agreement. All employees and agents who receive Confidential Information transmitted pursuant to this Agreement shall be advised of the terms and conditions of this Agreement and agree to be bound by them prior to their receiving such information. The parties further agree to use reasonable efforts, including obtaining appropriate commitments from such employees or agents and developing access codes to any Confidential Information maintained on computer, to prevent such employees or agents from disclosing such information to others or using same except as needed for this Agreement.
4. STANDARD OF CARE.
The Consultant warrants that the Services will be of a professional quality and shall be performed by personnel possessing competency exceeding or conforming to generally accepted professional practices which are within its applicable industry standards in a timely manner and in compliance with all applicable federal, state and local laws and regulations. Consultant warrants that the Services and materials provided by it under this Agreement shall not infringe upon the intellectual property rights of any third party. Consultant further warrants that this Agreement does not conflict with any agreement under which Consultant is obligated, and that it possesses all right, power and authority to enter into this Agreement. No other representation, express or implied, and no warranty or guarantee are included or intended in this Agreement, or in any report, opinion, deliverable, work product, document or otherwise. Furthermore, no guarantee is made as to the efficacy or value of any services performed or software developed. THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED BY THE CONSULTANT CONCERNING THE SERVICES AND RELATED WORK PRODUCT. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR OTHERWISE.
5. LIABILITY.
5.1 Limitation of Liability. To the extent permitted by law and except as expressly provided to the contrary in this Agreement, Consultant shall not be under any liability (contractual, tortious or otherwise) to Client in respect of any loss or damage (including, without limitation, consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to this Agreement or the act, failure or omission of Consultant.
5.2 Remedy. Client agrees that prior to filing any claim arising out of or relating to the Services, it will provide Consultant with written notice and either (i) give Consultant an opportunity to use commercially reasonable efforts to cure, at its expense, the matter that gave rise to the claim for which the Consultant is at fault, or (ii) require Consultant to return the fees paid by Client to the Consultant for the particular service provided that gives rise to the claim, subject to the limitation contained in Section 5.1.
5.3 Survival. Articles 2, 3, 5, 6, and 7 survive the expiration or termination of this Agreement for any reason.
6. WAIVER OF SUBROGATION Consultant and Client hereby waive any claim against the other by way of subrogation or otherwise, which may arise during the term of this Agreement, for any and all loss, liability, expense, claim or damage covered by any policy of insurance.
7. MISCELLANEOUS.
7.1 Insecurity and Adequate Assurances. If reasonable grounds for insecurity arise with respect to Client's ability to pay for the Services in a timely fashion, the Consultant may demand in writing adequate assurances of Client's ability to meet its payment obligations under this Agreement. Unless Client provides the assurances in a reasonable time and manner acceptable to the Consultant, in addition to any other rights and remedies available, Consultant may partially or totally suspend Consultant’s performance while awaiting assurances, without any liability.
7.2 Severability. Should any part of this Agreement for any reason be declared invalid, such decision shall not affect the validity of any remaining provisions, which remaining provisions shall remain in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated, and it is hereby declared the intention of the parties that they would have executed the remaining portion of this Agreement without including any such part, parts, or portions which may, for any reason, be hereafter declared invalid. Any provision shall nevertheless remain in full force and effect in all other circumstances.
7.3 Waiver. Waiver of breach of this Agreement by either part shall not be considered a waiver of any other subsequent breach.
7.4 Notices. Client shall give the Consultant written notice within ten (10) days of obtaining knowledge of the occurrence of any claim or cause of action which Client believes that it has, or may seek to assert or allege, against the Consultant, whether such claim is based in law or equity, arising under or related to this Agreement or to the transactions contemplated hereby, or any act or omission to act by the Consultant with respect hereto. If Client fails to give such notice to the Consultant with regard to any such claim or cause of action and shall not have brought legal action for such claim or cause of action within said time period, Client shall be deemed to have waived, and shall be forever barred from bringing or asserting such claim or cause of action in any suit, action or proceeding in any court or before any governmental agency or authority or any arbitrator. All notices or other communications hereunder shall be in writing, sent by courier or the fastest possible means, provided that recipient receives a manually signed copy and the transmission method is scheduled to deliver within 48 hours, and shall be deemed given when delivered to the address specified below or such other address as may be specified in a written notice in accordance with this Section.
If to the Consultant:
InPower, LLC
713 North Courthouse Road
Suite 200
Richmond, VA 23236
If to Client – to address provided by Client
Any party may, by notice given in accordance with this Section to the other parties, designate another address or person or entity for receipt of notices hereunder.
7.5 Assignment. This Agreement is not assignable or transferable by the Client without the written consent of Consultant, which consent shall not be unreasonably withheld or delayed.
This Agreement is not assignable or transferable by the Consultant without the written consent of Client, which consent shall not be unreasonably withheld or delayed.
7.6 Disputes. The Consultant and Client recognize that disputes arising under this Agreement are best resolved at the working level by the parties directly involved. Both parties are encouraged to be imaginative in designing mechanism and procedures to resolve disputes at this level. Such efforts shall include the referral of any remaining issues in dispute to higher authority within each participating party's organization for resolution.
7.7 Section Headings. Title and headings of sections of this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement.
7.8 Representations; Counterparts. Each person executing this Agreement on behalf of a party hereto represents and warrants that such person is duly and validly authorized to do so on behalf of such party, with full right and authority to execute this Agreement and to bind such party with respect to all of its obligations hereunder. This Agreement may be executed (by original or telecopied signature) in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.
7.9 Residuals. Nothing in this Agreement or elsewhere will prohibit or limit the Consultant's ownership and use of ideas, concepts, know-how, methods, models, data, techniques, skill knowledge and experience that were used, developed or gained in connection with this Agreement. The Consultant and Client shall each have the right to use all data collected or generated under this Agreement.
7.10 Cooperation. Client will cooperate with the Consultant in taking actions and executing documents, as appropriate, to achieve the objectives of this Agreement. Client agrees that the Consultant's performance is dependent on Client's timely and effective cooperation with the Consultant. Accordingly, Client acknowledges that any delay caused solely by Client may result in the Consultant being released from an obligation or scheduled deadline or in Client having to pay extra fees for the Consultant's agreement to meet a specific obligation or deadline despite the delay.
7.11 Governing Law and Construction. This Agreement will be governed by and construed in accordance with the laws of Virginia, without regard to the principles of conflicts of law. The language of this Agreement shall be deemed to be the result of negotiation among the parties and their respective counsel and shall not be construed strictly for or against any party.
7.12 Arbitration. Any controversy, dispute or claim arising out of or related to this Agreement or breach of this Agreement shall be settled solely by confidential binding arbitration by a single arbitrator in accordance with the commercial arbitration rules of JAMS in effect at the time the arbitration commences. The award of the arbitrator shall be final and binding. No party shall be entitled to, and the arbitrator is not authorized to, award legal fees, expert witness fees, or related costs of a party. The arbitration shall be held in Richmond, VA.
7.13 Entire Agreement; Amendment. This Agreement, including any Exhibits, states the entire Agreement between the parties and supersedes all previous contracts, proposals, oral or written, and all other communications between the parties respecting the subject matter hereof, and supersedes any and all prior understandings, representations, warranties, agreements or contracts (whether oral or written) between Client and the Consultant respecting the subject matter hereof. This Agreement may only be amended by an agreement in writing executed by the parties hereto.
7.14 Force Majeure. The Consultant shall not be responsible for delays or failures (including any delay by the Consultant to make progress in the prosecution of any Services) if such delay arises out of causes beyond its control. Such causes may include, but are not restricted to, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, electrical outages, computer or communications failures, and severe weather, and acts or omissions of subcontractors or third parties.
7.15 Use By Third Parties. Work performed by the Consultant pursuant to this Agreement is only for the purpose intended and may be misleading if used in another context. Client agrees not to use any documents produced under this Agreement for anything other than the intended purpose without the Consultant's written permission. This Agreement shall, therefore, not create any rights or benefits to parties other than to Client and the Consultant.