- Definitions. As used in this Agreement, the following terms shall have the following meanings.
1.1. “Consultancy” means the period during which the Company is performing Consulting Services for the Client.
1.2. “Consulting Fee(s)” means the fee or fees to be paid by the Client to the Company as set forth in the statement of work attached hereto and made a part hereof as EXHIBIT A, as the same may be amended from time to time (the “Statement of Work”).
1.3. “Consulting Services” means the consulting services to be provided by the Company to the Client as described in the Statement of Work.
1.4. “Costs” means the reasonable travel expenses and out-of-pocket expenses incurred by the Company in performance of the Consulting Services as further described in Section 4.3.
1.5. “Proprietary Information” shall mean information disclosed by the Company to the Client, either directly or indirectly, in writing or orally, or developed by the Company, alone or with others, in connection with its Consultancy with the Client that: (1) is not generally known in the industry in which the Client is or may become engaged; (2) has been created, discovered, or developed by Company, or in which property rights have been assigned or otherwise conveyed to Company; and (3) that has material economic value or potential material economic value to the Client’s present or future business. Without limiting the generality of the foregoing, Proprietary Information shall include trade secrets (as such term defined under the version of the Uniform Trade Secrets Act adopted and in effect in the State of Florida from time-to-time during the term of this Agreement) and all other discoveries, developments, designs, improvements, inventions, formulas, software programs, processes, techniques, know-how, negative know-how, data, research, technical data, customer and supplier lists, and any modifications or enhancements of any of the foregoing, and all of the Company’s program, pricing, marketing, sales, business contract, or other financial or business information.
1.6. “Rights” means all recipes, production and manufacturing methods and procedures, patents, trademarks, service marks, copyrights, and other recognized proprietary rights pertaining to Proprietary Information or Work Product.
1.7. “Statement of Work” and “Amended Statement of Work” means the description of the Consulting Services to be performed by the Company for the Client and the Consulting Fees to be paid by the Client to the Company for the Consulting Services, in each case attached hereto and made a part hereof as EXHIBIT A, as the same may be amended from time to time (noting that the Statement of Work may be amended numerous times) in the form attached hereto and made a part hereof as EXHIBIT B (all such amendments being referred to collectively as the “Amended Statement of Work”).
1.8. “Work Product” means all work product produced by the Company within the scope of its Consultancy or which relates directly to or involves the use of any Proprietary Information or Rights, including but not limited to all software, concepts, ideas, designs, documentation, memoranda, inventions, business methods, processes, and other documents, writings, or tangible things of any kind.
- The Company’s Obligations .
2.1. Consulting Services. The Company agrees to provide the Consulting Services to the Company, subject to performance by the Client of all of its obligations under this Agreement, specifically including timely payment of all Consulting Fees and Costs.
2.2. Work on Company Premises. It is acknowledged that the Company will perform many, most, or substantially all of the Consulting Services away from the Client’s premises. However, to the extent that the Company performs Consulting Services on the Client’s premises, the Company, and its employees and agents, shall adhere to Client’s reasonable rules and regulations for conduct, provided that copies of the same are provided to the Company in advance of any on-site work.
2.3. Reports and Meetings. The Company agrees to: (a) provide the Client with written progress reports as mutually agreed upon in writing, setting forth the status of the Consulting Services in a format to be mutually agreed upon by the Parties; and (b) participate in meetings, whether in person, telephonic, or otherwise, to review the progress of the Consulting Services.
- Statement of Work; Amended Statement of Work.
3.1. Statement of Work. The initial Consulting Services to be provided pursuant to this Agreement are set forth in the Statement of Work. The Statement of Work is hereby incorporated into and made a part of this Agreement as if it were set forth in full in the body of the Agreement.
3.2. Amended Statement of Work. All additions, deletions, or modifications to the Statement of Work will be set forth in writing and signed by the Parties in one or more amendments to the Statement of Work all of which, collectively, shall be represented by the Amended Statement of Work. The Amended Statement of Work, regardless of how many times the same is amended or modified, is hereby incorporated into and made a part of this Agreement as if it were set forth in full in the body of the Agreement.
3.3. Statement of Work Phasing. The Parties agree as follows.
3.3.1. The Statement of Work includes various tasks, along with associated milestones and timelines, based on one or more phases.
3.3.2. The Company shall not commence work on any subsequent phase until and unless: (a) the Client has authorized commencement of work on such subsequent phase; and (b) at the Company’s option, the Company has been paid in full for all Consulting Fees, Costs, and other amounts due under this Agreement or otherwise with respect to the preceding phase.
3.3.3. In performing the Consulting Services and in obtaining the consent or approval of the Client, including with respect to commencing work on subsequent phases, the Company may act upon any communication, whether verbal or written and specifically including telephonic communication, voice mail, and electronic communication (such as e-mail and text messaging), received from the Client and believed by it, in good faith, to be genuine.
- Payment.
4.1. General Terms. The Parties agree that the payment terms for all amounts due to the Company under this Agreement or otherwise will be as stipulated in the Statement of Work and any Amended Statement of Work. The Client shall pay to the Company all Consulting Fees, Costs, and other amounts due under this Agreement on a timely basis as described in this Agreement and in the Statement of Work and any Amended Statement of Work. Consulting Fees are earned when paid and non-refundable under any circumstances.
4.2. Payment Terms; Time of the Essence. Company agrees as a material inducement for the Company to provide Consulting Services and enter into this Agreement that payment for all Consulting Fees, Costs, and other amounts due under this Agreement shall be paid in full within Fifteen (15) days of the date of each Company invoice. In the event of any failure by Company to make any such payments within such 15-day period, the balance due shall accrue an interest charge of One and 50/100 Percent (1.5)% per month; provided, however, that in no event shall the Client be required to pay interest in excess of the maximum amounts permitted under applicable law, and in the event that the Company should receive interest in excess of such permissible amounts, any such excess shall be applied to principal due hereunder, and not to interest. In addition to the other remedies described above, if any Company invoice is not paid in full within Thirty (30) days of the date of the invoice then the Company will have the right to cease providing Consulting Services and to stop any further work for the Client until all payments and amounts due to the Company from the Client have been paid in full, including any costs of collection or reasonably attorneys’ fees incurred by the Company. Time is of the essence on payment for Consulting Services to the Company.
4.3. Travel; Expense Reimbursement. In addition to the Consulting Fee, the Client agrees to pay the Company for any travel time spent in connection with the Consulting Services at the rate of One Hundred Twenty Five Dollars ($125) per hour of actual travel time. In addition to the Consulting Fee, the Client agrees to pay the Company the reasonable out-of-pocket expenses incurred by the Company in performance of the Consulting Services. Said reimbursement shall include but not be limited to all travel expenses including airfare, automobile rental, taxi service, or any other means of transportation, as well as food and lodging allowances, and also include pilot/plant fees, shipping costs, and the like. The Company shall obtain the prior approval of the Client before incurring expenses in excess of Two Hundred and Fifty Dollars ($250.00) in any monthly billing period. All Costs, including but not limited to travel reimbursements and expense reimbursement, shall be paid in full within Fifteen (15) days of the date of each Company invoice.
- Term and Termination.
5.1. Term. The term of this Agreement shall commence on the date specified in the Statement of Work for commencement of work and shall terminate on the earlier of completion of the Consulting Services by the Company or termination pursuant to Section 5.2 below.
5.2. Termination for Cause. Either Party shall have the right, in addition to and without prejudice to any other rights or remedies, to terminate this Agreement as follows:
5.2.1. By the Company on Ten (10) days’ written notice and opportunity to cure if the Client fails to pay the amounts due to the Company in a timely manner pursuant to Section 4, time being of the essence;
5.2.2. By the Client on Thirty (30) days’ written notice and opportunity to cure if the Company fails to meet any of the milestones or other deadlines required to be met pursuant to this Agreement, specifically subject to Section 20;
5.2.3. By either Party for any material breach of this Agreement by the other Party, other than failure by the Client to make payments under Section 4, which failure is not cured within Fifteen (15) days of the date of written notice from the non-defaulting Party specifying the breach and requiring its cure;
5.2.4. By either Party effective immediately on written notice if: (a) all or a substantial portion of the assets of the other Party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy; (b) a proceeding is commenced by or against the other Party for relief under the bankruptcy, receivership, or similar laws and such proceeding is not dismissed within sixty (60) days; or (c) the other party is adjudged bankrupt.
5.3. Obligations on Termination. On termination of this Agreement, the Parties shall have no further obligations to each other pursuant to the Agreement, except that the obligations of the Parties described in Section 4 (Payment), Section 6 (Ownership of Work Product), Section 7 (Duty of Confidentiality), Section 8 (Nondisclosure and Protection of Proprietary Information), Section 9 (Confidential and Proprietary Information of Third Parties), Section 10 (Disclosure and Assignment of Work Product), Section 11 (Non-Solicitation), Section 12 (Returning of Documents and Other Tangible Items), Section 13 (Company Warranties), and Section 14 (Indemnification) shall survive any termination of this Agreement.
- Ownership Of Work Product. Except as otherwise agreed to in writing by the Parties, the Parties agree that the Company’s Work Product shared with the Client is the property of the Company. Except to the extent otherwise provided in this Agreement, as the same may be amended, the Company does not have any right, ownership or title in the Work Product or any related copyrights, trademarks, patents, trade secrets or Proprietary Information of the Company
- Duty of Confidentiality. The Parties acknowledges that this Consultancy creates in it a duty of confidentiality with respect to: (a) the Proprietary Information; (b) Company’s research and development; (c) information resulting from the Consulting Services; (d) information resulting from the use of equipment, supplies, or facilities owned, leased, or contracted for by the Client; and (d) confidential information divulged to the Client by the Company, and vice versa, in the course of the Consultancy.
- Nondisclosure and Protection of Proprietary Information.
8.1. The Client agrees that it will not, directly or indirectly, except as required by the normal business of the Company or as expressly consented to in writing and in advance by an authorized officer of the Company: (a) disclose, publish, or make available, other than to an authorized employee, officer, or director of Client, any Proprietary Information or Rights; (b) sell, transfer, or otherwise use or exploit any Proprietary Information or Rights; (c) permit the sale, transfer, use, or exploitation of any Proprietary Information or Rights by any third party; and (d) retain upon termination of its Consultancy any Proprietary Information or Rights; provided, however, that the Client shall be permitted to retain, and is hereby authorized to retain, one complete set of all data, formulations, documents, results, information, research, and other related materials relied on, consulted, developed, or incorporated into the services provided to the Client, specifically subject to the Client’s continuing obligation at all times to maintain the same in strict confidence.
8.2. To the extent that either Party obtains information that may be subject to the attorney-client privilege between a Party and either Party’s attorneys, that Party shall take reasonable steps to maintain the confidentiality of such information and to preserve that privilege to the extent reasonably possible.
8.3. If at any time the Client becomes aware of any unauthorized access, use, possession, or knowledge of any Proprietary Information or Rights, the Client shall promptly notify the Company.
8.4. Notwithstanding anything in this Section 8 to the contrary, if the Client is required by order of any court of competent jurisdiction, by any governmental agency, or by any applicable law, rule, or regulation to disclose Proprietary Information, the Company shall first notify the Company of the requirement of disclosure as soon as reasonably possible after learning of such requirement in order to allow the Company a reasonable opportunity to protect its Proprietary Information by protective order or other means.
- Confidential and Proprietary Information of Third Parties. Either Party may receive from third parties their confidential or proprietary information, which shall be subject to each Party’s duty to maintain the confidentiality of such information and to use it only for certain limited purposes.
- Disclosure and Assignment of Work Product. Except as otherwise agreed in writing by the Parties:
10.1. Company shall promptly disclose to the Client all Work Product consistent with the particular project that Company is working on for Client.
10.2. Upon termination of this Agreement, the Client agrees to execute all documents reasonably requested by Company to evidence an assignment and to provide all reasonable assistance to Company in perfecting or protecting any or all of Company’s rights in the Work Product including, without limitation, assisting Company in obtaining United States or foreign patents and copyright registrations covering inventions and original works of authorship utilized during the Consultancy. Client acknowledges that these obligations shall continue after the cessation of its Consultancy.
- Non-Interference and Non-Solicitation of Customers.
11.1. During the period of the Consultancy and for a period of one (1) year after the cessation thereof for any reason, whether with or without cause, neither Party shall interfere with the business of the other Party, including without limitation their respective relationships with customers, agents, representatives, or vendors.
11.2. The Parties agree that during the period of the Consultancy and for a period of one (1) year after the cessation thereof for any reason, whether with or without cause, either Party shall not solicit or attempt to solicit customers of the other Party or to divert their business to any individual or entity then in competition with either Partyt.
11.3. The Parties acknowledge that they have carefully read and considered the provisions hereof and, having done so, agree that the restrictions set forth herein, including, but not limited to, the time periods of any restrictions, are fair and reasonable and are reasonably required for the protection of the interests of the Parties.
- Returning Of Documents and Other Tangible Items. On termination of the Consultancy for whatever reason, whether with or without cause, both Parties agree that they shall not take, nor allow a third party to take, and they shall return to each other all original copies and all reproductions of original records, reports, notebooks, proposals, lists, correspondence, equipment, documents, computer diskettes, photographs, negatives, undeveloped film, notes, drawings, specifications, tape recordings or other electronic recordings, programs, data, or other materials or property of any nature belonging to the other Party.
- Warranties.
13.1. Non-Infringement. The Company warrants that the Consulting Services and the Work Product, to the extent created by the Company, will not knowingly violate or in any way infringe upon the rights of third parties, including property, contractual, employment, trade secrets, proprietary information, and nondisclosure rights, or any trademark, copyright, or patent rights.
13.2 Right to Seek Counsel and Business Advice. The Client warrants that it understands that any Consulting Services provided to the Client should be discussed with the Client’s legal counsel and/or business advisor before any implementation of the plan being offered by the Company. The Company does not warrant the success of its Consulting Services and the Client understands that the Consulting Services are being offered by the Company in its best reasonable judgment. Results will vary.
- Indemnification; Limitation of Liability; Disclaimer.
14.1. Indemnification by Company. Company hereby agrees to indemnify, defend, and hold harmless the Client from any loss, claim, liability, or damage, including reasonable attorney’s fees and costs, arising out of this Agreement, the Work Product, or the Consulting Services to the extent that the loss, claim, liability, or damage is caused by the Company’s willful breach of any term of this Agreement or the intentional act of the Company. This indemnity obligation shall survive termination of this Agreement.
14.2. Indemnification by Client. Client hereby agrees to indemnify, defend, and hold harmless Company from any loss, claim, liability, or damage, including reasonable attorney’s fees and costs, arising out of this Agreement, the Work Product, or the Consulting Services to the extent that the loss, claim, liability, or damage is caused by Client’s breach of any term of this Agreement or the intentional act of the Client. This indemnity obligation shall survive termination of this Agreement.
14.3. Limitation on Company’s Liability. To the maximum extent permitted by law, and as a material inducement for Company to provide the Consulting Services and to enter into this Agreement, Client agrees as follows: (a) the liability of Company shall be limited to an amount equal to the aggregate fees actually received by Company from the Client; (b) this limitation will apply regardless of the cause of action or legal theory pled or asserted; (c) in no event shall Company be liable for any special, incidental, indirect, or consequential damages arising from or related to this Agreement or the Consulting Services; (d) the success and/or profitability of Client’s business depend on a variety of factors and conditions beyond the control of Company and the scope of this Agreement; and (e) Company makes no representations or warranties of any kind regarding the success and/or profitability of Client’s business, or lack thereof, and Company will not be liable in any manner respecting the same.
- Equitable Remedies; Specific Performance. Both Parties acknowledge and agree that if they breach or threaten to commit a breach of any of the provisions of this Agreement, they shall have, in addition to and not in lieu of any other rights available to them under law and in equity, the right to seek to have such provisions specifically enforced by any Court of competent jurisdiction.
- Non-Exclusivity, Subcontracting, Non-Recruitment.
16.1. Non-Exclusivity. Client acknowledges that Company is not required to exclusively provide services to Client and that Company may be performing similar consulting services for businesses other than Client including, without limitation, other companies in Client’s industry. Client agrees that this Agreement does not prohibit Company in any way from performing any such consulting services.
16.2. Subcontracting. Any subcontract made by the Company with the consent of Client, which consent shall not be unreasonably withheld or delayed, shall incorporate by reference all of the terms of this Agreement.
16.3. Non-Recruitment. Each Party agrees that at all times during the term of the Consultancy, and for a period of six (6) months thereafter, it shall not, whether directly or indirectly, solicit, recruit, and/or hire the employees of the other Party, unless the prior written permission of the other Party, which may be withheld in the other Party’s sole and absolute discretion, has first been obtained.
- Testimonials and Likeness. The Client shall allow the Company to publish testimonials on any electronic media including the Company’s website, and the Client consents to the Company’s use of its trademarks and/or likeness for the Company’s marketing purposes.
- Notices. Except as otherwise provided in this Agreement, notices required to be given pursuant to this Agreement shall be effective when received, and shall be sufficient if given in writing, hand-delivered, sent by facsimile with confirmation of receipt, sent by First Class Mail, return receipt requested (for all types of correspondence), postage prepaid, or sent by overnight courier service and addressed as follows:
To the Client:
____________________________
____________________________
____________________________
Email:
To the Company:
____________________________
____________________________
____________________________
Email:
- General Provisions.
19.1. Waiver. A waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall not be deemed to be or construed as a further or continuing waiver of any such term, provision, or condition.
19.2. Amendment. This Agreement may not be amended, altered, supplemented, or modified except by an instrument in writing signed by both Parties.
19.3. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any of the other terms, conditions, or provisions hereof.
19.4. Application of Florida Law; Jurisdiction; Mediation. This Agreement, and the application or interpretation thereof, shall be governed exclusively by its terms and by the laws of the State of Florida. Venue for all purposes shall be deemed to lie exclusively within Hillsborough County, Florida. The parties agree that this Agreement is one for performance in Florida. The parties to this Agreement agree that they waive any objection, constitutional, statutory or otherwise, to a Florida court’s exercise of jurisdiction over any dispute between them and specifically consent to the jurisdiction of the Florida courts. By entering into this Agreement, the parties, and each of them understand that they may be called upon to answer a claim asserted in a Florida court. As a condition precedent to any claim other than non-payment of Consulting Fees to the Company, the Parties agree that they must mediate the claims in St. Petersburg, Florida, either through a certified Florida mediator with experience in commercial disputes or, by agreement, through an informal settlement conference in person in St. Petersburg, Florida.
19.5. Assignment. Neither Party shall assign this Agreement or any of its respective rights hereunder, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
19.6. Successors. This Agreement shall be binding on and shall inure to the benefit of the Parties and their respective heirs, executors, assigns, and administrators including, without limitation, any person acquiring, whether by merger, consolidation, purchase of assets, or otherwise, all or substantially all of Client’s assets. Company acknowledges and agrees that for purposes of this Agreement, references to Client shall include any subsidiaries of Client and any activities that Company may engage in on behalf of any such subsidiaries during its Consultancy shall be governed by, and subject to, the provisions of this Agreement.
19.7. Titles. The section and other headings set forth herein are for reference and convenience only, and do not define, limit, or extend the scope of this Agreement in any way.
19.8. Entire Agreement. This Agreement and the exhibits attached hereto constitute the entire agreement and understanding between the Parties with respect to its subject matter hereof and supersede all prior agreements and understandings, whether written or oral. There are no representations, warranties, undertakings, express or implied, other than as set forth in this Agreement.
19.9. Interpretation. This Agreement was negotiated and reviewed by all parties hereto and to the extent desired by any Party by their respective legal counsel. No portion of this Agreement shall be construed against any drafting party.
19.10. Attorneys’ Fees. If any Party brings any legal proceedings for enforcement of any of the provisions or this Agreement or for the recovery of any sums which may be due hereunder or because of any default or breach, in addition to all other relief the prevailing Party shall be entitled to recover reasonable attorneys’ fees and costs.
19.11. Independent Contractor. The Parties acknowledge that the services rendered under this Agreement are for a specified fee for certain identified goals, and that while the Client shall determine the intended goals of the services, Company shall determine the means by which these goals are accomplished. As such, the Parties acknowledge that Company is an independent contractor and accept the legal consequences of this status, including without limitation that (1) Company is excluded from the benefits of any applicable state worker’s compensation insurance and must maintain its own desired levels of medical, disability, life and other insurance or benefits, whether or not it is injured while performing for the Client; (2) Company is excluded from receiving state unemployment and disability insurance benefits with respect to Client; (3) Client will not deduct from Company’s compensation any amounts for federal or state income tax withholding, “FICA” contributions, contributions to state disability funds or similar withholding; and (4) Company is excluded from coverage of state and federal labor laws that may regulate the payment of overtime wages or other matters affecting employees. Company agrees to accept exclusive liability for the payment of payroll taxes, self retention taxes, and social security and other contributions that are based on the compensation received by Company under this Agreement. Nothing in this Agreement shall be deemed to create an employer-employee, principal-agent, or joint venture relationship. Neither Party has the authority to enter into any contracts on behalf of the other Party or otherwise act on behalf of the other Party.
19.12. Publicity. Neither Party shall, without the prior written consent of the other party, disclose the terms and conditions of this Agreement, except such disclosure may be made as is reasonably necessary to the disclosing party’s bankers, attorneys, or accountants or except as may be required by law.
19.13. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original document but all of which taken together shall constitute but one document. In making proof of this Agreement, it shall not be necessary to produce or account for more than one counterpart signed by each of the parties hereto.
19.14. Facsimile/Electronic Signatures Acceptable. This Agreement may be executed and delivered by facsimile and/or electronic signature and transmission.
19.15 Advice Of Counsel. The Parties acknowledge that, in executing this Agreement, they have had an opportunity to seek the advice of independent counsel and Company and Client have read and understood all the terms of this Agreement.
19.16 Waiver of Jury Trial. The parties hereby acknowledge that any dispute arising out of this Agreement will necessarily include various complicated legal and factual issues and therefore knowingly, voluntarily and intentionally waive trial by jury in any litigation in any court with respect to, in connection with or arising out of this Agreement, or the validity, interpretation, or enforcement hereof.
- Force Majeure. Company shall not be liable for its failure to perform any of its obligations under this Agreement during any period in which such performance is delayed or rendered impracticable or impossible due to circumstances beyond its reasonable control, including but not limited to labor strikes, riots, fires, acts of God, changes in governmental regulations, acts of governmental agencies or their employees, delays in permitting, catastrophes, emergencies, adverse weather conditions, wars, acts of terrorism, lack of availability of ingredients, supplies, or materials, labor shortages, illness, unavoidable casualties, any act or omission of the Client or any employee or agent of the Client, additional work or changes requested by Client, any failure on the part of Client or its employees or representatives to respond in a timely manner to requests from Company for information, feedback, or approvals, and/or failure of Client to make payments when due or to otherwise perform its obligations under the Agreement, provided that Company promptly notifies Client of the delay.