EFG Consulting, Inc., dab: ConvertMORE Consulting, Project Work Agreement
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THIS AGREEMENT is between the “Company” or “Client” whose information will be entered below, and Consultant Consulting, Inc. (“Consultant” or “Consultant”), whose office is at PO Box 21401, Boulder, CO 80308; Together (“the Parties”)
WHEREAS, Company is desirous of retaining Consultant for use as an independent contractor and a Marketing Consultant; and
WHEREAS, Consultant is desirous of providing said services to Company, in exchange for the mutual covenants contained herein, the Parties agree to the following:
- CONSULTANT’S SERVICES. Upon execution of this Agreement, Consultant agrees to provide marketing services as outlined in the Scope of Work document. Consultant shall make best reasonable efforts towards providing the services listed in the Client’s Scope of Work. Of course, no assurance can be given to the Company that Consultant will be successful in any event with respect to any aspect of its engagement with the Company, notwithstanding its “best efforts.”
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, Consultant MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE SERVICES OR ANY OTHER MATTER PERTAINING TO THIS AGREEMENT.
- CONSULTANT’S COMPENSATION. Company agrees to pay Consultant according to the Scope of Work document provided. Compensation shall not be delayed or adjusted for work or deliverables delayed when that delay is caused by either actions or in-actions on the part of the Company and/or any of the Company’s subcontractors.
- INDEPENDENT CONTRACTOR. Consultant shall be an Independent Contractor, not an agent, and agrees to abide by all legal requirements attached thereto. Consultant shall be responsible for the control of its work related to this Agreement. Contractor shall designate its own work hours and methodologies and not be under the supervision of Company. Consultant shall be independently responsible for all applicable State and Federal taxes from compensation received from Company. Consultant shall not receive any benefits from Company. Each party shall select and shall have full and complete control of and responsibility of all employees, subcontractors and agents employed or used by such party and for the conduct of such party’s business. None of a party’s employees, subcontractors or agents shall be, or shall be deemed to be, the employee, subcontractor or agent of the other party for any purpose whatsoever. Without limiting any of the foregoing, each party agrees to accept exclusive liability for the payment of taxes or contribution for unemployment insurance, worker’s compensation insurance, or other remuneration paid to the employees of such party. Parties shall retain responsibility for its compliance with all applicable federal, state and local laws and regulations.
- LIMITATIONS. Company may not hire as employee, subcontractor or agent, Consultant’s employees, subcontractors or agents for the duration of the Agreement and for a 12 month period after the close of the Term of this agreement, after such period Company shall not be required to go through Consultant. Company shall not be required to go through Consultant to use affiliates and/or joint venture partners Consultant has brought on board after the close of the Term of this agreement. Consultant has the right to capitalize on relationships with Company’s current affiliates, joint venture partners and business resources that may or may not have developed as a result of Consultant’s association with Company.
- CONFIDENTIAL INFORMATION. For the purposes of this Agreement, “Confidential Information” of Parties shall mean any information Parties disclose to, or provide access to, the other Party during the course of the parties’ respective performances under this Agreement that relates to the either Party’s past, present or future including, but not limited to: (i) research and development, (ii) business activities and methods, (iii) clients and client lists, (iv) products and services, (v) vendor lists, (vi) marketing material and copy, (vii) personnel, (viii) all financial information related to the promotion, including the successful or unsuccessful financial results achieved during and after the program.. Confidential information shall not include information that is in the public domain. Except as otherwise provided in the Agreement, all information disclosed by Company as Confidential Information shall remain the exclusive property of the Company, and shall be used by the Consultant only for the purposes of the Agreement and shall not be disclosed to any third party without express written permission from Company.
- EMPLOYEES AND SUBCONTRACTORS. Any employees and/or subcontractors used by Consultant shall be required to execute an agreement with Consultant that protects against the disclosure of Company’s confidential information.
- The confidentiality terms of this agreement shall survive any term defined by this agreement and shall remain binding.
The Company recognizes and confirms that in the performances of its services hereunder: (i) Consultant may rely upon information provided by the Company without independent verification; (ii) Consultant shall incur no liability as a result of such reliance; and (iii) Consultant does not assume responsibility for the accuracy or completeness of such information, whether or not it makes an independent verification. Consultant will obtain the Company’s written or emailed consent before any confidential information is disclosed to any third party unless such disclosure is required by law.
- NO CONSEQUENTIAL DAMAGES. In no event shall either party be liable for any special consequential, incidental or punitive loss, damage or expenses including but not limited to business interruption, lost business, lost profits or lost savings, whether based on breach of contract, tort (including negligence), strict liability, product liability, under statue or otherwise, even if it has been advised of the possibility of such damage.
- SEVERABILITY. If any of the provision contained in this Agreement, or any part of them, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of such provision or any other provision contained herein, which shall be given full effect regardless of the invalid provision or part thereof.
- ASSIGNMENT. This Agreement may not be assigned by either party except by prior mutual written agreement, signed by the parties.
1) For projects that are 50% down, 50% upon completion or similarly agreed upon construct, in the event either Party seeks to terminate this agreement, within 7 days of signatures, said Party may do so with or without cause. A written notice (termination request) must be received not more than 7 days from the date of submission of this Agreement. If Company/Client terminates within the 7 day window, Consultant, at its sole discretion, may choose to refund up to 50% of the initial payment less any costs incurred up to the receipt of the termination request. If Consultant terminates this agreement, Consultant will refund 100% of the initial payment. Termination of the Agreement after the 7-day period may only occur with cause. If Company initiates the Termination request, deliverables will cease effective the date of Termination request and no refund of payments made will be provided. If Consultant initiates the Termination request, deliverables will continue through the end of the paid-through period or some other mutually agreed upon adjustment to the Scope of Work. No refund of payments made will be provided and both Consultant and Company will be released from all future obligations under the Scope of Work.
2) For projects that are divided into equal payments across a specific number of months but in which payments are not open ended (aka: qualified as a “Retainer” client), in the event either Party seeks to terminate this agreement, within 7 days of signatures, said Party may do so with or without cause. A written notice (termination request) must be received not more than 7 days from the date of submission of this Agreement. If Company/Client terminates within the 7 day window, Consultant, at its sole discretion, may choose to refund up to 50% of the initial payment. If Consultant terminates this agreement, Consultant will refund 100% of the initial payment. Termination of the Agreement after the 7-day period may only occur with cause. If Company initiates the Termination request, deliverables will cease effective the date of Termination request and no refund of payments made will be provided. If Consultant initiates the Termination request, deliverables will continue through the end of the paid-through period or some other mutually agreed upon adjustment to the Scope of Work. No refund of payments made will be provided, and both Consultant and Company will be released from all future obligations under the Scope of Work.
- MODIFICATION.This Agreement may only be modified in writing, signed by the parties.
- APPLICABLE LAW. This Agreement and any question concerning its validity, construction or performance shall be governed by the laws of the State of Colorado, and jurisdiction and venue shall for issues raised in the courts of Boulder county, irrespective of the place of execution, or the order in which the signatures of the parties are affixed or the place or places of performance.
- HANDLING DISPUTES. The parties agree that any disputes or questions arising hereunder including the construction or application of this agreement shall be settled by arbitration in accordance with the rules of the American Arbitration Association then in force. Any dispute arising out of this Agreement that the parties cannot resolve amongst themselves shall be submitted to binding arbitration before the Judicial Arbiter Group in Denver, CO before a mutually agreeable arbitrator who shall not be affiliated with either party. The arbitrator shall determine the rules of the arbitration with express instructions to define rules that are most expeditious and cost-effective for the parties. If a mutually agreeable arbitrator cannot be determined by the parties, each party shall individually nominate an arbitrator and both nominated arbitrators shall determine an adequate arbitrator. Any decision by the arbitrator may be reduced to judgment in a competent jurisdiction. If Consultant is required to take any action to collect any fees and/or costs incurred hereunder or to enforce a breach of this Agreement, whether in a court of law, via arbitration or otherwise, opposing party agrees to pay any and all costs associated therewith, including, without limitation, Consultant’s attorneys’ fees, court costs, arbitration expenses, etc.
- MUTUAL INDEMNIFICATION AND LIMITATION OF LIABILITY. The Company agrees to indemnify and hold harmless Consultant and its officers, directors, principals, agents, and employees from and against any loss, claim, damage, liability or expense (including reasonable counsel fees and expenses) arising out of or to which Consultant may become subject as a result of the conduct or activities of the Company and/or its officers, directors, agents, and employees, or based on any statements, written or verbal, regarding the Company made by the Company itself and/or its officers, directors, agents, and employees. The Company agrees to promptly reimburse Consultant for any legal or other expenses as incurred in connection with the investigation or defending of any such loss, claim, damage or liability (or action in respect thereof). In no event shall Consultant be liable for acting in accordance with instructions from the Company or any entity or person authorized to act on its behalf.
Consultant agrees to indemnify and hold harmless the Company and its officers, directors, principals, agents, and employees from and against any loss, claim, damage, liability or expense (including reasonable counsel fees and expenses) arising out of or to which the Company may become subject as a result of the reckless or grossly negligent conduct or activities of Consultant and/or its officers, directors, agents, and employees, or based on any statements, written or verbal, made by Consultant itself and/or its officers, directors, agents, and employees which any of the foregoing know or should have reasonably known were materially false or materially misleading at the time that statement was made. Consultant agrees to promptly reimburse the Company for any legal or other expenses as incurred in connection with the investigation or defending of any such loss, claim, damage or liability (or action in respect thereof).
IN NO EVENT SHALL EFG CONSULTING, INC.’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID BY COMPANY FOR THE SERVICES PROVIDED HEREUNDER. UNDER NO CIRCUMSTANCES SHALL Consultant BE LIABLE TO COMPANY OR ANY OTHER PERSON FOR DIMINUTION IN VALUE, TRADING LOSSES, OPPORTUNITY COST, LOST REVENUE OR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER OR NOT FORESEEABLE.