TERMS AND CONDITIONS

  1. SERVICES. Consultant shall provide to Client certain services and incorporated by reference.
    1. The Services to be provided under this Agreement shall be performed by Consultant, and/or Consultant’s agents, employees, joint venture participants, and/or independent contractors (“Consultant’s Team”), as determined by Consultant. The manner of providing the Services shall be at the professional discretion of Consultant provided, however, that the quality of Services is in concert with Client’s quality control standards as communicated by Client to Consultant in writing before Services are rendered. The Parties agree an email reflecting the quality control standards shall constitute and a “writing” for purposes of this Paragraph.
    2. The Services will also include any other tasks which the Parties may agree on in writing (an additional Statement of Work). The Parties may enter into this writing in two ways. First, the Parties may enter into additional Statements of Work that expressly reference this Agreement, set forth their effective date, and must be signed by duly authorized officials of both Parties. Second, additionally and/or alternatively, the Parties may agree to add to or alter the Services via email if: (i) the Consultant sends an email to Client expressly stating that the Client is requesting additional tasks beyond those listed in Exhibit A; and Client directly responds to Consultant’s specific email with an unequivocal and complete agreement and acceptance of said additional tasks confirming that this is an acceptance pursuant to Paragraph 1(2) of this Agreement. Said additional Statements of Work and shall constitute modifications or amendments to this Agreement once fully executed or once fully “accepted” via email. If the Parties agrees to the additional requested tasks beyond what is listed in Exhibit A in writing, said writing shall expressly indicate whether those additional tasks will be included in the same consideration and charges set forth on Exhibit B, attached hereto and incorporated herein by reference, or will require Client to pay additional compensation as defined herein below to Consultant to be considered a valid writing. Any writing that fails to meet these requirements or fails to address the question of consideration shall NOT constitute a valid writing under this Paragraph 1(2).
    3. Services may be performed in phases to correspond to specific payment of Fees as outlined in Paragraph 2 herein below.

2. FEES/COMPENSATION. For the services rendered by the Consultant as required by this Agreement, the Client will provide compensation (the “Fees: or ”Compensation”) to the Contractor at an hourly rate of $200/hr. “Emergency Support” is defined as requests within 24 hours as reasonable may be billed up to $300/hr. All Fees paid upfront by Client shall become nonrefundable once any material or substantial services have been performed, even if Client instructs Consultant to cease work before Services are completed.  Consultant Payments received later than 30 calendar days after the due date are subject to a late fee equal to 3% of the outstanding balance. If payments are not received 30 calendar days after the due date such failure shall be a breach of this Agreement, allowing Consultant to suspended all work until such time as the account balance is paid in full. Accounts in default are subject to an interest charge on the outstanding balance equal to the maximum rate permitted by law, or 10% per annum, whichever is higher.

The Fees charged include all applicable sales tax, and duties as required by law. If applicable, the Consultant will be reimbursed for expenses incurred by the Consultant in connection with providing the Services of this Agreement. Permitted recoverable expenses include, but are not limited to, _________________________.

3. LICENSES. Client grants to Consultant a non-exclusive, non-transferable, royalty-free license to use Client’s trade names, trademarks, logos and service marks (collectively “Marks”) in connection with the performance of this Agreement. Client warrants to Consultant that it owns the Marks and other intellectual property rights in those Marks and any use by Consultant of those Marks will not infringe upon any third party rights. Client warrants to Consultant that it owns or has the license to utilize all copyrighted materials it provides to Consultant. In the event that the Marks and/or the copyrighted materials Client provides to Consultant is challenged as to use or ownership, Client hereby agrees to notify Consultant of any such challenge and indemnify, defend, and hold harmless the Consultant from any such challenges from any source.

4. CONSULTANT’S INTELLECTUAL PROPERTY. Intellectual Property (“IP”) means all inventions (whether or not prosecutable under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protected under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, logos, publicity rights, know-how, ideas (whether or not protected under trade secret laws), and all other subject matter protected under patent, copyright, moral right, mask work, trademark or trade secret laws. “Consultant IP” means IP made, conceived, or developed by Consultant, whether prior to or after to the Effective Date of this Agreement, and contained in, comprising, or otherwise necessary to use and/or maintain services, including without limitation, IP related to operational techniques or processes, business methodologies, “know-how,” and all documentation relating to the foregoing. Pursuant to the terms and conditions contained in this Agreement, Consultant grants to Client a limited, non-transferable, non-sublicensable, non-exclusive license during the Term of this Agreement, to the Consultant IP incorporated into the services for use. Except as provided herein, Consultant reserves all rights in its IP.

5. TERM AND TERMINATION OF AGREEMENT. The term of this Agreement shall be 3 months from the Effective Date (“Term”) and may renew automatically month-to-month. If Client wishes to change the Term of this Agreement for any reason or if Client wishes to change any terms or conditions of this Agreement, Client will first provide Consultant with thirty (30) days’ written notice of such change. Either Party may terminate this Agreement for any reason or no reason by providing the other with thirty (30) days’ prior written notice, notwithstanding to the termination rights of Consultant for Client’s failure to pay when due as set forth under Paragraph 7 herein. If factors beyond the control of Consultant precludes completion of the Services, such as, Client’s non-responsiveness to Consultant’s request for, including but not limited to, information, materials, communication, feedback and approval, Consultant reserves the right to terminate this Agreement pursuant to either this Paragraph 6 or pursuant to Paragraph 7 herein below. Consultant shall first provide fourteen (14) days for Client to cure before terminating this Agreement.

Termination of this Agreement under this Paragraph or any other Paragraph in this Agreement does not relieve Client from its financial obligation to Consultant to pay for Fees owing or reimbursement due and owing. The Client shall still have the obligation to make any payments for allowable expenses and other earned consideration and compensation prior to the date of termination for Services performed and assigned to be performed and actually done by Consultant within the timeframe of the assignment of Services and during the term of this Agreement. As necessary given the timing of the termination and the performance of Services at that time, consideration will be prorated based on the Fee Schedule at Exhibit B.

If Consultant is unable to accomplish the Services as agreed for any reason out of Consultant’s control, including but not limited to international travel restrictions or bans, war, terrorist attack, natural disaster, labor dispute, strike, protest, riot, civil unrest, weather, pandemic, governmental order or limitation issued for the purposes of protection the health, safety, and/or welfare of the public, force majeure, and/or illness or disability on the part of Consultant, then the Client shall be informed in writing of the same as soon as reasonably practical. In such an insistence that Contract is unable to accomplish the Services as provided for any reason out of Contractor’s control, either party may terminate this Agreement without cause upon ten (10) day’s written notice regardless of whether or not there has been completion of Services.

6. REMEDIES. A “material breach” shall herein be defined as any violation of the
terms of this Agreement not cured within fourteen (14) calendar days after the non-breaching party sends and/or gives written notice of the violation from the non-defaulting party. Consultant shall have the right to seek all legal and equitable relief against any material breach by the Client including but not limited to rescission, monetary damages, equitable relief, termination of Agreement, and/or injunctive relief arising from violation of any of the terms contained herein. The Consultant’s remedies set forth in this agreement are not cumulative or mutually exclusive upon material breach by the Client. In the event that the Consultant is the materially breaching party, Client’s sole remedy is to terminate this Agreement upon fourteen (14) days’ written notice upon material breach.

7. CLIENT RELEASE. Consultant reserves the right to use and Client grants the right to use Client’s name and public work product as a reference for Consultant’ work, including but not limited to, portfolio reference, marketing, and/or advertising.

8. REPRESENTATIONS AND WARRANTIES. Client represents and warrants to Consultant that: (a) all information provided by Client for use by Consultant to perform the services is true and accurate; (b) any information provided by Client for use by Consultant to perform the services shall not violate, misappropriate or infringe any intellectual property rights of any person or entity; (c) Client shall have all right, power and authority to enter into this Agreement; and (d) Client shall comply with all applicable laws, rules and regulation.

9. LIMITATION OF LIABILITY. CONSULTANT SHALL HAVE NO LIABILITY FOR ANY CONSEQUENTIAL, EXAMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF CONSULTANT TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO CONSULTANT BY CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY CONSULTANT HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK.

10. INDEMNIFICATION. Client will indemnify, hold harmless, and defend Consultant, Consultant’s Team, and all officers, directors and agents of Consultant and any of its affiliates and subsidiaries from and against any and all claims, suits, actions, demands or proceedings (whether threatened, asserted, or filed) and all related damages losses, liabilities, cost and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or relating to: (a) any violation or breach by Client of any terms, representations, or warranties in this Agreement; (b) any violation of any proprietary rights or non-proprietary rights (including, but not limited to, defamation, libel, rights of privacy or publicity) for content or information provided by Client; (c) any gross negligence or willful misconduct; and (d) any damages arising from any contractual, negligent, and/or intentional breach by a third party providing ancillary services in support of the Services set forth in Exhibit A including but not limited to, WordPress, Strip, and/or Paypal. Client hereby agrees to indemnify and hold Consultant, Consultant’s Team and all, officers, directors and agents harmless against any suits, claims, losses, damages and costs (collectively, “Claims”) directly arising from the provision of services under this Agreement, provided that such indemnification shall not cover any Claims that are a result of gross negligence or willful misconduct on part of Consultant in providing such Services.

11. CONFIDENTIALITY. Consultant and Client shall hold the terms of this Agreement and any Statement of Work issued hereunder confidential, and shall only disclose the same as required by law. Information obtained by Consultant that is not in the public domain in the conduct of work under this Agreement shall be considered confidential and shall not be divulged by Consultant or Consultant’s Team.

12. INDEPENDENT CONTRACTOR. Consultant and Consultant’s Teamare independent contractors and not an agent, representative, or partner of Client. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, joint venture, partnership, franchise, sales, representative or employment relationship between the Parties or to impose any partnership obligation or liability upon either Party. The compensation set forth in this Agreement is the only compensation that will be paid to Consultant without withholding of any taxes. The Consultant and the Client acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a contract for services. Consultant has and will be responsible for all Federal, State and Local Taxes, including but not limited to FICA, Income Taxes, Payroll Taxes, Gross Receipt Taxes, arising out of the compensation provided to Consultant under the terms of this Agreement, and compensation paid to Consultant’s Team, and Consultant hereby indemnifies and holds Client harmless for any and all taxes due or incurred due to all payments made by Client to Consultant for the Services provided under this Agreement.

13. MISCELLANEOUS.

  1. Notices. All notices that either Party is required or may desire to serve upon the other Party shall be in writing and addressed to the Party to be served at the respective addresses set forth herein and shall be sent via email, U.S. First Class Mail or private express courier service with confirmed receipt and will be effective upon receipt at the addresses listed herein (unless the Parties are notified in writing of a change in address, in which case notice will be sent to the new address).
  2. Force Majeure. Neither Party shall be deemed in default hereunder, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to international travel restrictions or bans, war, terrorist attack, natural disaster, labor dispute, strike, protest, riot, civil unrest, weather, pandemic, governmental order or limitation issued for the purposes of protection the health, safety, and/or welfare of the public, earthquake, flood, fire, storm, natural disaster, pandemic, act of God, armed conflict, lockout, failure of utilities, or boycott, provided that the Party relying upon this section (i) shall have given the other Party prompt written notice thereof and, in any event, within 5 days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based. The events of force Majeure shall not release Client from its payment obligations to Consultant.
  3. Waiver, Amendments and Severability. The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. Except as expressly provided in this Agreement, no term or condition of this Agreement may be modified without the prior written consent of the Parties. In the event that any provision of this Agreement should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained shall not, in any way, be affected or impaired thereby.
  4. Assignment. This Agreement shall be binding upon and inure to the benefit of each Party’s successors and assigns. Neither Party may assign this Agreement, in whole or in part, without the other Party’s prior written consent; provided, however, a Party’s acquisition by merger into another company or formation of a Party into a corporation shall not be deemed an assignment of this Agreement by such Party.
  5. Governing Law and Attorney’s Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to conflicts of laws or choice of laws rules. In an action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover reasonable attorneys’ fees and costs.
  6. Enurement. This Agreement will enure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators, successors and permitted assigns.
  7. Titles/Headings/Misc. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement. This Agreement shall be deemed to have been jointly prepared by the parties. Any uncertainty or ambiguity existing in it shall not be interpreted against any party, but rather shall be interpreted according to the rules generally governing the interpretation of contracts. If any provision of this Agreement, or any portion of any provision, shall be deemed invalid or unenforceable for any reason whatsoever, such invalidity or unenforceability shall not affect the enforceability and validity of the remaining provisions hereof. Any provisions of this Agreement, which require observance, performance or enforcement after execution, termination, non-renewal or expiration shall survive execution, termination, non-renewal or expiration of this Agreement and shall continue to be binding on the parties hereto, subject to and in accordance with the other terms and conditions therein. “Business Day(s)” shall mean Monday, Tuesday, Wednesday, Thursday, and Friday only excluding all United States federally recognized holidays. “Day(s)” or “Calendar Day(s)” shall mean each calendar day in sequence as found in a 365-day year as recognized by the United States of America.
  8. Entire Agreement. This Agreement, along with any exhibits expressly made part of this Agreement by reference constitute the entire understanding and agreement between the Parties with respect to the transactions contemplated, and supersedes any and all prior or contemporaneous oral or written representation, understanding, agreement or communication between the Parties concerning the subject matter hereof. Notwithstanding anything herein to the contrary, this Agreement may be modified in accordance with the terms set forth herein in Paragraph 1(2).

EXHIBIT A

Services do NOT include:

ACCESSIBILITY/ADA COMPLIANCE
PRIVACY POLICIES
EMAIL MANAGEMENT
VERIFICATION OF COPYRIGHT AND LICENSE OWNERSHIP OF CLIENT MATERIALS AND MARKS
VERIFICATION AND/OR REMOVAL OF FALSE STATEMENTS
COMPATIABILITY WITH EVERY SINGLE OPERATING SYSTEM, DEVICE, AND/OR BROWERS. CONSULTANT WILL CREATE SERVICES THAT TAKE INTO ACCOUNT THE MOST CURRENT HARDWARE AND SOFTWARE IN CUSTOMARY AND CURRENT USE AT THE TIME SERVICES ARE RENDERED.
TECHNICAL SUPPORT

EXHIBIT B