Professional Services Addendum
1. SERVICES
The Company hereby retains Agency and Agency hereby agrees to render the Services to the Company for the term of this Agreement. The Services shall include, but are not limited to, those duties set forth in a Statement of Work (as defined below). The Agency will not perform any Services for the Company except as authorized or requested by the Company.
2.STATEMENTS OF WORK
a. The provisions of this MSA will apply to all services provided to Company by Agency pursuant to specific statements of work (and including, without limitation, if applicable, services commenced prior to the date hereof), and all Attachments, Schedules and other service or purchase orders (collectively, “Statements of Work”) a sample of which is attached hereto as Exhibit A. Each individual Statement of Work shall be executed by the parties and shall become an Addendum to this MSA subject to all of the terms and provisions hereof. The terms of this MSA shall be incorporated into each such Statement of Work by this reference. Upon execution of each Statement of Work by each of Agency and Company, Agency shall provide to Company the services and products described therein in accordance with the schedule specified therein.
b. Unless otherwise provided in a Statement of Work, upon completion of the services specified in each Statement of Work and final delivery of the results of such services to Company, Company shall have no more than ten (10) days to complete final acceptance and shall notify Agency in writing no later than at end of such 10-day period of any non-compliance of the results of the services with the applicable specifications therefore set forth in the Statement of Work. If Company notifies Agency of any such non-compliance within the applicable period of time, Agency and Company shall jointly determine a reasonable cure period for re-delivery and testing. Failure of Company to notify Agency of non-compliance within the 10-day acceptance period shall be deemed automatic and final acceptance of all results of the specified services. Any amounts due and owing at such time shall be due and payable immediately.
3. TERM AND TERMINATION
a. This Agreement is effective as of the Effective Date, and will terminate on the one (1) year anniversary of the Effective Date (the “Termination Date”), unless terminated earlier pursuant to subsection (b) below or extended by mutual consent of the Agency and the Company.
b. This Agreement may be terminated by either the Company or the Agency at any time prior to the Termination Date by giving thirty (30) days’ written notice of termination. Such notice may be given at any time for any reason, with or without cause.
c. Termination of this Agreement shall not affect (i) the Company’s obligation to pay for Services previously rendered by the Agency or expenses reasonably incurred by the Agency for which the Agency is entitled to reimbursement under Section 4 of this Agreement, or (ii) the Agency’s continuing obligations to the Company under Sections 6, 7 and 8 of this Agreement.
4. COMPENSATION
a. The Company will compensate the Agency as provided on each Statement of Work.
b. When the Agency is requested to attend meetings for which travel is required, the Company shall reimburse, in accordance with its standard business practices, the Agency’s actual travel and other out-of-pocket expenses reasonably incurred in performing such services after submission of reasonably detailed invoices documenting such expenses. The Agency shall use its best efforts to obtain cost-effective airfares and other reasonable travel-related expenses.
5. RELATIONSHIP OF THE PARTIES; NO CONFLICTS
a. Notwithstanding any provision of this Agreement to the contrary, the Agency is and shall at all times be an independent contractor and not an employee of the Company. The Agency shall have no right under this Agreement, or as a result of his or her consulting services to the Company, to participate in any other employee, retirement, insurance or other benefit program of the Company, nor will the Company make any deductions from the Agency’s compensation for taxes, the payment of which shall be solely the Agency’s responsibility.
b. The Agency shall pay, when and as due, any and all taxes incurred as a result of his compensation hereunder, including estimated taxes, and if requested by the Company, provide the Company with proof of said payments. The Agency further agrees to indemnify the Company and hold it harmless to the extent of any obligation imposed on the Company: (i) to pay withholding taxes or similar items; or (ii) resulting from the Agency being determined not to be an independent contractor.
c. The Agency represents and warrants that neither this Agreement nor the performance thereof will conflict with or violate any obligation of the Agency or right of any third party.
6. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
a. The Agency recognizes and acknowledges that certain knowledge and information which he or she will acquire or develop relating to the business of the Company or the business affairs of any person doing business with the Company, including, without limitation, any and all technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of the Company, its suppliers and customers, and includes, without limitation, its respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information (collectively, “Confidential Information”) are the valuable property of the Company.
b. The Agency covenants and agrees that, without the prior written consent of the Company, the Agency will not use, disclose, divulge or publish any Confidential Information at any time during the term hereof or thereafter; provided, however, that the Agency shall not be obligated to treat as confidential, any Confidential Information that (i) was publicly known at the time of disclosure to the Agency, (ii) becomes publicly known or available thereafter other than by means in violation of this Agreement or any other duty owed to the Company by the Agency, or (iii) is lawfully disclosed to the Agency by a third party.
c. The Agency agrees not to disclose to the Company, or use in connection with the Agency’s efforts for the Company, any Confidential Information belonging to any third party, including the Agency’s prior employers, or any prior inventions made by him or her and which the Company is not otherwise legally entitled to learn of or use.
d. Upon termination of his or her service hereunder, the Agency agrees to promptly deliver to the Company, all Confidential Information in his or her possession that is written or other tangible form (together with all copies or duplicates thereof, including computer files), and all other property, materials or equipment that belong to the Company, its customers, its prospects or its suppliers.
7. INTELLECTUAL PROPERTY
a. Inventions. All legal rights to any and all customer data which is developed by Agency, alone or in conjunction with others, in its capacity as a Agency for Company under this Agreement shall be considered proprietary and confidential and to be owned by Company and is hereby assigned by Agency to Company.
b. Copyrights. Any writings, including without limitation, reports, photographs, videotapes, made under this Agreement are works for hire and such are the property of Company and shall be treated as Confidential Information under Section 5 hereof. Agency hereby assigns any and all such copyrights to any such works for hire to Company. Agency agrees to mark any writings prepared hereunder with the appropriate copyright marking and to inform Company of such writings and markings. Copies of such writings shall be given to Company. Agency agrees to assist Company in the registration, prosecution and defense of such copyrights but is not liable for the costs of such activities.
c. Trademarks. Agency agrees not to use nor advertise any of Company’s trademarks or tradenames without the prior express written consent of Company.
d. Agency agrees to provide Company with all information and materials, and sign all papers and the like necessary to obtain and maintain patents or other rights to the Inventions in any and all countries designated by Company. The writing, designation of countries and filing will be done by Company. Prosecution of applications and maintenance of patent or other rights will be done by Company. All costs and expenses related to prosecution of applications or maintenance of patents or other rights will be paid by Company.
8. NON-SOLICITATION
a. During the term of this Agreement and for a period of twelve (12) months thereafter, the Agency agrees that, without the prior written consent of the Company, the Agency will not, directly or indirectly, on his or her behalf or on behalf of any other person or entity, (i) call upon, solicit, divert or take away or attempt to solicit, divert or take away any of the customers, business or patrons of the Company; or (ii) employ, solicit or attempt to solicit for employment any person who is then an employee of or Agency to the Company or who was an employee of or Agency to the Company at any time during the twelve (12) month period immediately prior to the date of the subject solicitation.
b. The parties acknowledge that the foregoing restrictions placed upon the Agency are necessary and reasonable in scope and duration and are a material inducement to the Company to execute, deliver and perform its obligations arising under or pursuant to this Agreement, and that despite such restrictions the Agency will be able to earn his or her livelihood and engage in his or her profession during the term of this Agreement.
9. LIMITATION OF LIABILITY - IN NO EVENT SHALL Agency’S LIABILITY TO COMPANY FOR DAMAGES RESULTING FROM ANY CLAIMS ARISING FROM OR RELATING TO ANY ACTS OR OMISSIONS OF Agency IN THE PERFORMANCE OF THIS AGREEMENT, EXCEED THE TOTAL AMOUNT OF COMPENSATION RECEIVED BY Agency UNDER THE PARTICULAR STATEMENT OF WORK TO WHICH SUCH CLAIMS OR DAMAGES RELATE. NOTWITHSTANDING THE FOREGOING, Agency’S LIABILITY WITH RESPECT TO A DEFECTIVE DELIVERABLE SHALL BE LIMITED EXCLUSIVELY TO REPLACEMENT, REPAIR OR MODIFICATION OF SUCH DELIVERABLE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY, ANY OF ITS CUSTOMERS, END USERS, SITE VISITORS, AFFILIATES OR ANY OTHER PERSONS FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF DATA OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF A PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. INDEMNIFICATION
a. Each party (each, an “Indemnifying Party”) shall indemnify and defend the other party against and shall hold the other party harmless from any claim, loss, damage and expense including reasonable attorneys’ fees (“Damages”), resulting from or arising out of the negligent or more culpable act or omission of Indemnifying Party or its employees, agents or independent contractors, related to this Agreement. Notwithstanding the foregoing, the Indemnifying Party shall not have any obligation to indemnify under this Section 10 for any Damages to the extent they arise out of the negligent or more culpable act or omission of the other party.
b. Each party agrees to cooperate in all respects with the other party in the defense of any such claim. The Indemnifying Party also agrees and undertakes to repay defense costs and expenses, including attorneys’ fees, reasonably incurred in defending against any such claim which may be advanced by the other party prior to the final disposition of any proceeding relating to such claim.
11. RIGHTS AND REMEDIES UPON BREACH
If the Agency breaches or threatens to commit a breach of any of the provisions of Section 6, 7 or 8 of this Agreement (the “Restrictive Covenants”), the Company shall have the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to the Company and that money damages would not provide an adequate remedy to the Company. The Company shall also have any other rights and remedies available to the Company under law or in equity.
12. MISCELLANEOUS
a. This Agreement shall be governed in all respects by the laws of the State of California, without regard to any provisions thereof relating to conflict of laws among different jurisdictions.
b. Except as provided in Section 11 above, the parties agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement shall be settled by arbitration to be held in San Diego County, California, in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in such dispute or controversy, and may award the prevailing party its counsel fees and expenses. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. The Company and the Agency shall each pay one-half of the costs and expenses of such arbitration, and subject to the foregoing, each shall separately pay its respective counsel fees and expenses.
c. This Agreement is the entire agreement of the parties with respect to the Services to be provided by the Agency and Company and supersedes any prior agreements between them with respect to the subject matter of this Agreement. This Agreement may only be amended in writing by the Company and the Agency and their respective permitted successors and assigns.
d. The Services to be provided by the Agency hereunder may only be performed by the Agency personally and Agency therefore shall have no right or authority to assign this agreement or any portion thereof or otherwise delegate performance under this Agreement without the prior written consent of Company. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, successors and assigns.
e. Either party’s failure to enforce any right resulting from a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach by the other party.
f. All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by either certified mail return receipt requested, nationally recognized courier, facsimile or hand delivery to the parties at the respective addresses set forth below or to such other address as the party to receive the notice has designated by notice to the other party. All notices shall be effective (i) when delivered personally, (ii) when transmitted by telecopy, electronic or digital transmission with receipt confirmed, (iii) the business day when delivered by a nationally recognized courier, or (iv) upon receipt if sent by certified or registered mail.
g. If any of the provisions of this Agreement are found to be invalid under an applicable statute or rule of law, they are to be enforced to the maximum extent permitted by law and beyond such extent are to be deemed omitted from this Agreement, without affecting the validity of any other provision of this Agreement.
h. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together shall constitute one and the same instrument.
