CONSULTING AGREEMENT
CONSULTING AGREEMENT (this “Agreement”) effective as of the date of execution of the Service Order (the “Effective Date”), between the Quoted Account, (the “Company”) and Brazen Group LLC, a New York limited liability company (“Consultant”). The Company and Consultant are referred to collectively herein as “Parties,” and each individually, a “Party”).
WHEREAS, the Company desires Consultant to provide certain services described in Exhibit I hereto and Consultant is willing to provide such services for the period and upon such other terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, and intending to be legally bound hereby, the Parties hereto agree as set forth below:
Term. The term of this Agreement shall be effective as of the Effective Date and shall continue in accordance with the time period set forth under Part A of Exhibit I, subject to any extensions, mutually agreed to in writing by the Parties, unless terminated earlier pursuant to Section 7. The period of time from the Effective Date through the termination of this Agreement is herein referred to as the “Term.”
Services; Independent Contractor Status.
During the Term, Consultant shall provide or cause to be provided services described in Part A of Exhibit I to this Agreement (the “Services”). Any additional services are subject to acceptance by Consultant in accordance with Section 2(b) of this Agreement. Consultant shall diligently perform the Services in accordance with all appropriate professional standards.
At any time after the Effective Date and during the Term, either Party may request that the Services include additional or modified specifications. Upon such request, the Parties shall negotiate in good faith the adoption of such additional or modified specifications and any corresponding pricing modifications or extensions of time that may be necessary or appropriate. Consultant shall not be obligated to perform or cause to be performed any Services in accordance with such specifications unless mutually agreed to in writing by the Parties.
The Company acknowledges and agrees that certain Services may be provided by, or under, agreements with third parties or that certain Services may require the use of materials, software or other Intellectual Property Rights owned by third parties (“Third Party Materials”). Consultant shall identify all Third Party Materials in Exhibit I or any subsequent writing pursuant to Section 2(b) hereof. The Company shall be solely responsible, at its expense, to acquire all necessary rights in Third Party Materials, and the Company’s receipt and use of the Services shall be subject to, and in accordance, with the terms and conditions applicable to the Company’s use of all Third Party Materials. Consultant agrees to provide the Company with reasonable assistance, at the Company’s expense, in connection with the foregoing. Consultant’s obligations to provide the Services, or parts of the Services, in respect of which any Third Party Materials are required, shall be suspended if the Company is unable to obtain the necessary rights to use such Third Party Materials or the Company’s rights to use such Third Party Materials expire or are withdrawn by the applicable third party.
Nothing in this Agreement shall prohibit Consultant from providing to, or developing for, any other Person identical, similar or other services or Intellectual Property Rights as those provided to, or developed for, the Company under this Agreement; provided, that such other services or Intellectual Property Rights do not breach Section 8 of this Agreement. As used in this Agreement, “Person” means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, governmental authority or any other entity.
Consultant acknowledges and agrees that Consultant is responsible for providing Consultant’s own office space, and that Consultant will further be available as may be reasonably requested via telephone or email. The Parties acknowledge that Consultant may be required to travel to the extent necessary to perform the Services, and such travel will be at the Company’s sole expense, unless otherwise mutually agreed to in writing by the Parties.
Both Parties acknowledge that: (i) Consultant is an independent contractor of the Company and not an employee of the Company, and nothing contained in this Agreement shall be construed to imply a joint venture, partnership or principal-agent or employment relationship between Consultant on the one hand, and the Company on the other hand; (ii) Consultant shall not have any right to act for, represent or otherwise bind the Company in any manner except as expressly contemplated by Exhibit I; (iii) neither Consultant nor any of its employees or service providers shall be entitled to participate in any benefit plans or programs of the Company; and (iv) no employee of Consultant shall be deemed to be an employee of the Company by reason of the Services.
Non-solicitation.
Except pursuant to a general solicitation through the media or by a search firm, in either case, that is not directed specifically to any employees of the other Party, each Party agrees that: (i) during the Term, and for 1 year thereafter, each Party shall not intentionally interfere with the relationship of the other Party with any Person who or which is employed by or otherwise engaged to perform services for, or any customer, client, supplier, developer, subcontractor, licensee, licensor or other business relation of, such other Party; (ii) during the Term, and for 1 year thereafter, each Party shall not directly or indirectly, without the prior written consent of the other Party, solicit, employ or engage (or attempt to solicit, employ or engage) any employee, consultant or independent contractor of such other Party who was employed by or provided services to such other Party at any time during the 1 year period immediately preceding the date of such solicitation, employment, engagement or attempt thereof, with whom the soliciting Party had contact during the tenure of this Agreement; and (iii) neither Party shall assist any Person in any way to do, or attempt to do, anything prohibited by the foregoing clauses (i) or (ii).
The periods during which the provisions of Section 3(a) apply shall be tolled during and shall be deemed automatically extended by any period in which either party is in violation of the provisions of Section 3(a).
Without limiting the generality of Section 11, notwithstanding the fact that any provision of this Section 3 may be determined not to be subject to specific performance, each Party will nevertheless be entitled to recover monetary damages as a result of the other Party’s breach of such provision.
Subcontracting. At any time during the Term, Consultant may use third party subcontractors to perform a part or all of the Services, including but not limited to, obtaining permits and coordinating rebate activities.
Consulting Fees. Subject to Part D and Part E of Exhibit 1, Consultant’s consulting fees for the Services during the Term shall be paid by the Company in accordance with the consulting fees set forth on Part B of Exhibit I (the “Consulting Fees”) and the payment schedule set forth on Part C of Exhibit I.
Force Majeure; Reduction of Services. Consultant (including third parties authorized under Section 3) shall be excused from the performance of its obligations under this Agreement, for any period, and to the extent, that such performance is prevented, in whole or in part, by events beyond Consultant’s reasonable control, including but not limited to (and, for avoidance of doubt, the following list is intended to be illustrative and not exhaustive), any act of God, epidemics, fires, floods, explosions, earthquakes, droughts, weather, hurricanes, typhoons, tornadoes, winds in excess of 90mph, volcanoes, accidents, acts of a public enemy, war or threats of same, riots or threats of same, terrorism or threats of same, civil disturbance, embargos, acts of governments, acts of civil or military authorities, court orders, labor disputes (a “Force Majeure Event”), and such non-performance shall not be a breach or default hereunder. Without limiting the generality of the foregoing, Consultant will not be liable or deemed to be in breach of this Agreement by reason of any delay or failure to perform caused by any act or omission of the Company. Consultant shall give notice to the Company, as the case may be, of any such Force Majeure Event as soon as reasonably practicable, and Consultant (including third parties authorized under Section 3) and the Company will use commercially reasonable efforts to mitigate the effect of any such Force Majeure Event and its consequences on performance hereunder. Notwithstanding the above, any unpaid amounts in respect of the Services completed prior to the Force Majeure Event, whether or not invoiced prior to such date, and other costs and expenses expressly required by the terms of this Agreement to be borne by the Company shall remain due and payable by the Company in accordance with the terms set forth on Exhibit I.
Termination. Either Party may terminate this Agreement earlier than its scheduled expiration upon thirty (30) days’ prior written notice for any reason. If this Agreement is terminated in its entirety pursuant to Sections 1 or 7, all obligations of the Parties under this Agreement shall terminate and shall be of no further force or effect, except for: (i) Sections 2(d), 8, 9, 10,11, 16, 17, 18, 19, 20, 21, 22, 23 and 24, the terms and conditions of which shall survive any termination or expiration of this Agreement; and (ii) the obligation of the Company to pay: (x) all unpaid amounts in respect of Services provided under this Agreement prior to the date of termination, whether or not invoiced prior to such date, and (y) other costs and expenses expressly required by the terms of this Agreement to be borne by the Company.
Confidential Information.
Each Party acknowledges that such Party may become familiar with the other Party’s Confidential Information (in such capacity, a “Receiving Party”). The Receiving Party acknowledges that the Confidential Information obtained by such Receiving Party from the other Party (in such capacity, a “Providing Party”) pursuant to the performance of this Agreement is the property of the Providing Party. Each Receiving Party agrees not to disclose to any Person outside of the Providing Party or other unauthorized Person, any Confidential Information without the consent of the Providing Party, except to the extent necessary to perform the Services; provided however, that if either Party receives a request to disclose any Confidential Information pursuant to a request for information or documents in legal proceedings, subpoena, governmental or regulatory process or similar process, or is otherwise required to so disclose pursuant to any applicable law or any regulatory body, such Party shall, subject to applicable law, notify the other Party as promptly as practicable, of such request. Each Party shall use commercially reasonable efforts to cooperate, to the extent permitted by law, with the other Party in any actions such Party may take in seeking to prevent or limit disclosure at the sole expense of the Party taking action.
For purposes of this Agreement, “Confidential Information” means confidential, proprietary or material non-public information, whether in written, oral, electronic or other form, and all memoranda, notes, proprietary systems, trade secrets, technology, processes, project management tools, methodologies, analyses, compilations, studies, reports, extracts or other documents of a Party to which the other Party is exposed as a result of this Agreement, but which does not include information which is: (i) already in a Receiving Party’s (or its subcontractors’) possession; (ii) becomes generally available to the public other than as a result of disclosure by the Receiving Party (or its subcontractors) acquiring such information in violation of this Agreement; (iii) becomes available to a Receiving Party (or its subcontractors) on a non-confidential basis from a source other than the Providing Party; or (iv) is independently developed by a Receiving Party (or its subcontractors) without using Confidential Information and without otherwise violating this Agreement.
Destruction of Property. Upon termination of this Agreement and at the written request of the Company, Consultant, subject to applicable law and bona fide document retention policies of Consultant, shall destroy or return, at Consultant’s sole discretion, the Confidential Information of the Company (which to Consultant’s knowledge is in its possession).
Intellectual Property Rights.
For the purposes of this Section 10, “Intellectual Property Rights” shall mean any patents and other rights in inventions and improvements (whether or not patentable), trademarks, trade, business and domain names, service marks, rights in designs, copyright, rights in databases, rights in computer software, utility models, rights in confidential information (including know-how and trade secrets), rights with respect to any other materials produced, in whole or in part, by Consultant in the performance of the Services, and any other intellectual property rights, in each case whether registered or unregistered, in whatever form or media, and including applications for the grant of any such rights and all rights or forms of protection having equivalent or similar effect anywhere in the world, for the full term of protection of such intellectual property rights (including any renewals and extensions).
Unless otherwise expressly set forth in Exhibit I, to the fullest extent permitted by law, all Intellectual Property Rights that arise or are created directly or indirectly pursuant to the provisions of Services by Consultant, its agents, contractors or personnel of Consultant (the “Relevant IPRs”), shall belong to the Consultant exclusively and absolutely and are hereby assigned to the Consultant together with all rights of action accrued in relation thereto. Where any Relevant IPRs arise by virtue of the activities of any agents, contractors or personnel of the Company, the Company will procure that such rights are forthwith assigned absolutely and exclusively to the Consultant together with all rights of action accrued in relation thereto and that such agents, contractors and personnel comply with all the terms and conditions set forth in this Section 10. All costs associated with assigning and transferring the Relevant IPRs will be paid by the Company. With respect to any Relevant IPRs that are necessary for the Company to receive the Services, Consultant agrees that the Company shall have, and Consultant hereby grants to the Company, a limited, worldwide, non-transferable, non-sublicensable, royalty-free, fully paid-up license to the Materials to the extent necessary to make reasonable use of the Services.
To the extent the Company or any of its agents, contractors or personnel of the Company contributes to any Relevant IPRs or other Intellectual Property Rights owned by Consultant (including suggestions, comments or feedback) during the Term of this Agreement (the “Company Contributions”), all right, title and interest in the Company Contributions shall vest in Consultant and all the Company Contributions shall be works-made-for-hire, as that phrase is defined in the Copyright Revision Act of 1976 (17 U.S.C. § 101) (the “Act”). Consultant shall be deemed the sole author and owner throughout the universe of any such Company Contributions and any and all trade secret, patent, copyright and other intellectual property of whatsoever nature therein, whether or not now or hereafter known, existing, contemplated, recognized or developed, with the right to use the same in perpetuity in any manner Consultant determines in its sole discretion, without any further payment to the Company whatsoever. The Company hereby irrevocably assigns and agrees to assign any and all of the Company’s right, title and interest thereto to Consultant. The Company expressly acknowledges that Consultant shall own in perpetuity throughout the universe all now or hereafter existing rights of every kind and character in and to the Company Contributions, free of any claims whatsoever by the Company or any person deriving any rights or interests from or through the Company, and may exploit the Company Contributions in any and all media, now known or hereafter devised. If it is finally determined by a court of competent jurisdiction that the Company Contributions do not qualify as a work made for hire, then the material, together with all rights therein, including copyrights throughout the world, shall be deemed assigned and transferred to Consultant by this Agreement. With respect to any Company Contributions that are not owned by or assigned to Consultant, the Company agrees that Consultant shall have, and the Company hereby grants to Consultant, a perpetual, worldwide, irrevocable, royalty-free, fully paid-up, exclusive license to use for any and all purposes and in any manner any Company Contributions.
The Company agrees that Consultant is free to reuse (i) any information retained in the unaided memory of an agent, contractor or personnel of Consultant and (ii) all generalized knowledge, experience, know-how and technologies (including ideas, concepts, processes and techniques) acquired during the performance of the Services in the conduct of Consultant’s business.
Remedies and Injunctive Relief. Each Party agrees that the other Party shall be entitled to seek injunctive relief in any court of competent jurisdiction. Each Party specifically consents to the exclusive jurisdiction of the United States District Court for the Southern District of New York, or if that court is unable to exercise jurisdiction for any reason, to the exclusive jurisdiction of the Supreme Court of the State of New York, New York County, for this purpose. Consultant and the Company waive any right to any claim of improper or inconvenient venue or forum. Nothing in this Section 11 shall be construed as a waiver of the rights that either Party may have for damages under this Agreement or otherwise, all of which are reserved.
Representations and Covenants of the Company. The Company represents, warrants and covenants that as of the date hereof: (i) the Company has the full right, authority and capacity to enter into this Agreement and perform the Company\’s obligations hereunder; (ii) the Company is not bound by any agreement that conflicts with or prevents or restricts the full performance by the Company of its duties and obligations to Consultant hereunder during or after the Term; (iii) the execution and delivery of this Agreement shall not result in any breach or violation of, or a default under, any existing obligation, commitment or agreement to which the Company is subject; (iv) the Company is in compliance with all applicable laws, and has not received any notice of any alleged violation of any statute, law, regulation, ordinance, rule, judgment, order or decree from any governmental entity or other person; and (v) the Company is duly organized, validly existing and in good standing in the jurisdiction of its organization.
Cooperation by the Company. The Company will respond promptly to any reasonable requests from Consultant for any information or documentation required to perform the Services. The Company will also cooperate with Consultant in its performance of the Services and provide access to premises, employees and equipment as required to enable Consultant to perform the Services.
Representations and Covenants of Consultant. Consultant represents, warrants and covenants that as of the date hereof: (i) Consultant has the full right, authority and capacity to enter into this Agreement and perform Consultant’s obligations hereunder; (ii) Consultant is not bound by any agreement that conflicts with or prevents or restricts the full performance by Consultant of its duties and obligations to the Company hereunder during or after the Term; (iii) Consultant shall perform the Services with reasonable care and skill in accordance with industry-wide standards; (iv) the execution and delivery of this Agreement shall not result in any breach or violation of, or a default under, any existing obligation, commitment or agreement to which Consultant is subject; (v) Consultant is in compliance with all applicable laws, and has not received any notice of any alleged violation of any statute, law, regulation, ordinance, rule, judgment, order or decree from any governmental entity or other person; and (vi) Consultant is duly organized, validly existing and in good standing in the jurisdiction of its organization.
Limitations on Liability.
In no event shall Consultant be liable to the Company or to any third party for any loss of use, revenue or profit or loss of data or diminution in value, or for any consequential, incidental, speculative, remote, indirect, exemplary, special or punitive damages whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable and whether or not Consultant has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
In no event shall Consultant’s aggregate liability arising out of or related to the Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the aggregate amounts received by Consultant from the Company pursuant to the Agreement.
Taxes; Offsets. Consultant shall be responsible for the payment of any and all required federal, state, local and non-U.S. taxes (including self-employment taxes) incurred, or to be incurred, in connection with any amounts payable to Consultant under this Agreement. The Company may not offset any amounts due and payable by the Company to Consultant against any amounts Consultant owes the Company hereunder, unless mutually agreed to in writing by the Parties.
Assignment. Neither Party may assign this Agreement or its rights and obligations hereunder without the consent of the other Party. This Agreement shall be binding on, and shall inure to the benefit of, the Parties to it and their respective heirs, legal representatives, successors and permitted assigns.
Governing Law; No Construction Against Drafter. This Agreement shall be deemed to be made in the State of New York, and the validity, interpretation, construction and performance of this Agreement in all respects shall be governed by the laws of the State of New York without regard to its principles of conflicts of law that would give effect to the laws of another jurisdiction. No provision of this Agreement or any related document will be construed against or interpreted to the disadvantage of any Party hereto by any court or other governmental or judicial authority by reason of such Party having or being deemed to have structured or drafted such provision.
Consent to Arbitration; Waiver of Jury Trial.
Except as provided in Section 11, any controversy or claim arising out of or relating to this Agreement, or any breach hereof, shall be settled by submitting the matter to binding arbitration in New York County, New York by and pursuant to the commercial arbitration rules of JAMS (“JAMS”) then in effect. The Parties agree that the Expedited Procedures set forth in JAMS’ Comprehensive Rules 16.1 and 16.2 (or any successor thereto) shall apply. The determination of the arbitrator shall be conclusive and binding on the Company and Consultant, and judgment may be entered on the arbitrator’s award in any court of competent jurisdiction. The arbitrator shall not have the power to award punitive or exemplary damages. Issues of arbitrability shall be determined in accordance with the United States federal substantive and procedural laws relating to arbitration. The arbitration shall be conducted on a strictly confidential basis, and neither Consultant nor the Company shall disclose the existence of a claim, the nature of a claim, any documents, exhibits, or information exchanged or presented in connection with such a claim, or the result of any action (collectively, “Arbitration Materials”), to any third party, except as required by law, with the sole exception of their legal counsel and parties engaged by that counsel to assist in the arbitration process, who also shall be bound by these confidentiality terms. The Parties will share the JAMS administrative fees and the arbitrator’s fee and expenses, and each Party will pay its own attorneys’ fees except as otherwise provided by law. If court proceedings to stay litigation or compel arbitration are necessary, the Party who unsuccessfully opposes such proceedings shall pay all associated costs, expenses and attorneys’ fees that the other Party reasonably incurs. Either Party may commence litigation in court to compel arbitration or to confirm or vacate an arbitral award, to the extent authorized by the Federal Arbitration Act or the New York Arbitration Act. The arbitrator may grant interim injunctive relief and, pursuant to Section 11, the Company or its successors or assigns may commence litigation in court to obtain injunctive relief or an order requiring specific performance to enforce, or prevent any violations of, the covenants contained herein. The Parties agree to take all steps necessary to protect the confidentiality of the Arbitration Materials in connection with any such proceeding, agree to file all Confidential Information (and documents containing Confidential Information) under seal, and agree to the entry of an appropriate protective order encompassing the confidentiality terms of this Agreement.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Amendment; No Waiver. No provisions of this Agreement may be amended, modified, waived or discharged except by a written document signed by Consultant and the Company. The failure of a Party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such Party’s rights or deprive such Party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. No failure or delay by either Party in exercising any right or power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or power, or any abandonment of any steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.
Severability. If any term or provision of this Agreement is invalid, illegal or incapable of being enforced by any applicable law or public policy, all other conditions and provisions of this Agreement shall nonetheless remain in full force and effect.
Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Company and Consultant with respect to the subject matter hereof and supersedes all prior agreements and understandings (whether written or oral), between Consultant and the Company relating to such subject matter.
Notices. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or sent by facsimile or email or sent, postage prepaid, by registered, certified or express mail or overnight courier service and shall be deemed given when so delivered by hand, or facsimile or email, or if mailed, three days after mailing (one business day in the case of overnight mail or overnight courier service) to the Parties at the following addresses or facsimiles (or at such other address for a Party as shall be specified by like notice):
If to Consultant: Brazen Group LLC
28 Farmer Road, Windham, NH 03087
Attn: Brendan Heyck
Email: b@brazengroup.com
If to the Company: Bill To Address of the “Company”
Counterparts. This Agreement may be executed in one or more counterparts (including via facsimile and electronic image scan (pdf)), each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties.
EXHIBIT I
SCOPE OF WORK AND FEES
Services
Consultant shall provide services and charge fees to the Company in accordance with the Order Products/Services described.
Fees
Consulting Fees payable in consideration for Services in accordance with the Order Products/Services described.
Payment Schedule
Upon execution of this Agreement, 75% of Consulting Fees are payable to Consultant.
Upon Completion of Implementation Phase Consultant shall issue a written invoice to the Company for balance of Consulting Fees (25%).
Unless otherwise provided, Consulting Fees are payable within 7 days of receipt of an invoice. In the event Consulting Fees are not paid by the Company to Consultant within 7 days of receipt of an invoice, Consultant, in its sole and absolute discretion may suspend Services.
The Company shall make requisite payments to Consultant by wire transfer to the following account:
Bank Of America, Routing #: 026009593
Account #: 483030804505
n/o: Brazen Group
Additional Terms
Payments made via credit card will be charged a 3.5% fee.
Overdue accounts will be charged with interest at the statutory pre-judgment interest rate.
Any service carried out in addition to those outlined in Part A of Exhibit I, unless otherwise mutually agreed to in writing by the Parties, shall be charged at $125/hour. Such work shall only be carried out by Consultant upon receipt of a notice to proceed issued by the Company.
Expenses
Expenses incurred in connection with the Services that are not expressly included in Part A of Exhibit I shall either, (i) be reimbursable by the Company upon receipt of an invoice therefor from Consultant; or (ii) be payable directly by the Company as appropriate to the relevant third party.
[Intellectual Property Rights]
The following Intellectual Property Rights owned by the Company shall be provided to Consultant in connection with this Agreement, and the ownership of such Intellectual Property Rights shall remain with the Company:
[To be listed, if applicable]