Consulting Terms of Service

CRUSHCONTRACTS

Please read Section K. Arbitration carefully which requires arbitration to first resolve any claim that you may have against Provider.

TERMS AND CONDITIONS

1. Services

Services. Subject to this Agreement, Contractor will provide services for Client as described in applicable statements of work, order forms, or task orders including via email (“SOW”) (collectively with any associated deliverables, the “Services’) executed between the Parties from time to time. In the event of a conflict, the terms of the SOW shall take precedence. Contractor will perform such Services in a diligent, professional, and workmanlike manner, using technology, employees and sub-contractors (“Personnel”) with sufficient training and experience.
Compensation. Contractor shall be compensated for the Services as set forth in the applicable SOW. Any other fees and/or expenses must be pre-approved in writing by the Client. Contractor shall be solely responsible for any and all taxes, Social Security contributions or payments, disability insurance, unemployment taxes, and other payroll type taxes applicable to such compensation.
Invoice. Contractor shall submit invoices for all payments due hereunder to Client Invoice Contact listed in the SOW. Client shall pay Contractor all undisputed amounts for the Services within the payment period listed above starting at the receipt of invoice. Payment by Client shall not constitute acceptance of any non-conforming Services or waiver of any claims or rights Client may have in connection therewith.
Expenses. Unless otherwise approved by Client in writing in advance, Contractor shall be responsible for all expenses incurred while performing Services under this Agreement. Client is responsible for expenses incurred due to Client’s special or custom requests, and travel.
Equipment. Contractor will furnish and is in possession of the equipment, tools, and materials used to provide the services required by this Agreement and applicable SOW.
Mutual Warranties. Each Party warrants that

a. It has all the requisite power and authority to conduct its business, and to enter into this Agreement.

b. Execution, and performance of this Agreement will not violate or cause a breach of any existing agreement, covenant, promise or any other duties including confidentiality obligations.

c. Except as expressly stated herein, each Party disclaims all warranties, express, implied or statutory, respecting the Services provided under this Agreement, including any implied warranties of merchantability and fitness for a particular purpose.

2. Term and Termination.

The term of this Agreement shall be as listed above as Term.
This Agreement can be terminated for any reason by either Party with a thirty (30) day written notice to the other Party. Upon receipt of such notice Contractor agrees to stop work as promptly as practicable and to make available to Client all work-in-progress.
Either Party may terminate this Agreement for cause immediately if the other party materially breaches this Agreement or a SOW and such breach has not been substantially cured (if capable of cure) within thirty (30) days (“Cure Period”) following receipt of written notice of such breach. During the Cure Period, each Party will continue to perform its obligations under the Agreement.
Upon termination of this Agreement, all Service obligations shall cease immediately except for compensation for any authorized work performed and deliverables accepted by Client up to the time of termination. Expiration or termination of this Agreement for any reason shall not release either party from any of its obligations under this Agreement existing at the time of termination. Client is responsible for full payment in the event Client terminates for convenience. Client shall receive a refund for pro-rated remaining services only in the event of a termination for cause by Client, termination for convenience by Contractor, or a Force Majeure event.
Either Party may terminate this Agreement or any SOW immediately upon provision of written notice if the other Party becomes insolvent or files for bankruptcy.

3. Confidentiality

“Confidential Information” means any and all written or oral information identified as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including but not be limited to personal data, Client customer and third-party supplier information, business information such as operations, planning, marketing interests, and products, technical data, software, drawings, processes, financial information, intellectual property, trade secrets, written or oral representations, memoranda, reports or other records. Confidential Information excludes any information which a) was lawfully known to the receiving party (“Receiving Party”) prior to the date of such disclosure as evidenced in writing; b) is developed by Receiving Party independently of any Confidential Information received from the Disclosing Party (“Disclosing Party”); c) is in the public domain by reason other than a breach of this Agreement; or d) is received from a third party who is lawfully in possession of such information and without a breach of any obligation of confidentiality or non-use owed to the Disclosing Party or others.
The Receiving Party may disclose Confidential Information only within its organization, and with its affiliates, agents, representatives, consultants, and/or to those persons who have a need to know (“Representatives”) to fulfill the obligations of this Agreement and have agreed in writing to keep it confidential. The Receiving Party and its Representatives shall maintain such Confidential Information in confidence, will not disclose it to anyone else, nor use it for the benefit of the Receiving Party or for the benefit of others without prior written consent of the Disclosing Party. Receiving Party agrees to take all necessary and reasonable precautions to prevent any unauthorized disclosure of such Confidential Information. Receiving Party may disclose the Confidential Information to the extent required by law or order of a court or governmental agency, provided the Disclosing Party is notified promptly in writing to obtain a protective order.
All Confidential Information produced or delivered by Disclosing Party shall remain the property of the Disclosing Party and shall be promptly returned or destroyed with certification upon request by the Disclosing Party. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" AND THE DISCLOSING PARTY MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, ABOUT ITS MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ADEQUACY, ACCURACY, SUFFICIENCY OR FREEDOM FROM DEFECT OF ANY KIND, INCLUDING FREEDOM FROM ANY PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT THAT MAY RESULT FROM THE USE OF THE CONFIDENTIAL INFORMATION. THE DISCLOSING PARTY WILL NOT BE LIABLE FOR ANY EXPENSES OR LOSSES INCURRED OR ANY ACTION UNDERTAKEN BY THE CONSULTANT AS A RESULT OF THE RECEIPT OF CONFIDENTIAL INFORMATION.
Each Party will promptly notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information, or any other breach of this Agreement by such Party or any of its Representatives and will cooperate with the other Party to help the other Party regain possession of the Confidential Information and prevent its unauthorized use or further disclosure.
Personal Information. With respect to any Confidential Information that constitutes personal data, personal information, personally identifiable information or similar information under applicable privacy or data security laws (collectively, “Personal Information”), Contractor shall not (i) sell, as defined in the California Consumer Privacy Act of 2018 (as amended, the “CCPA”), Personal Information or (ii) retain, use or disclose Personal Information for any purpose other than the specific purpose of providing the Services.
Any violation of this Section 3 is a material breach of this Agreement.
The terms of this Agreement are Confidential Information.

4. Contractor Inventions and Work made for Hire.

“Invention” means any idea, concept, discovery, invention, development, research, technology, work of authorship, trade secret, software, firmware, content, audio-visual material, tool, process, technique, know-how, data, plan, device, apparatus, specification, design, prototype, circuit, layout, mask work, algorithm, program, code, documentation or other material or information, tangible or intangible, whether or not it may be patented, copyrighted, trademarked or otherwise protected (including all versions, modifications, enhancements and derivative works thereof).
Contractor acknowledges and agrees that any Invention, work of authorship, whether or not copyright protection is obtained for it, that is created, conceived, or developed by Contractor either solely or in conjunction with other employee or independent contractors of Client during and after Contractor’s relationship or engagement with Client that is based on or uses Client’s Confidential Information is a “Work made for Hire” as defined under U.S. copyright law, and will belong exclusively to Client including any copyrights, patents or other intellectual property rights pertaining thereto. Contractor hereby makes and agrees to make all assignments to the Client, and designates and appoints the Client as Contractor’s agent and attorney-in-fact to effectuate and accomplish the foregoing ownership. Such “Works made for Hire” shall not include any invention and/or intellectual property that is developed entirely on Contractor’s own time, without use of any Client resources, Confidential Information, and/or direction.

5. Relationship of the Parties. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created between the Parties. Neither party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent. Contractor and its employees, contractors or other personnel shall not look to Client as his/her employer, partner, agent or principal, or be entitled to any benefits accorded to Client's employees, including without limitation disability insurance, vacation or sick pay. Contractor shall be responsible for his/her own taxes, and insurance including without limitation unemployment, disability, worker's compensation, as well as licenses and permits usual or necessary for completing Contractor’s services to Client.

6. Injunctive Relief. Parties agree that monetary damages may not be an adequate remedy for a breach of this Agreement and that in the event of a breach or threatened breach of this Agreement, the non-breaching Party shall be entitled, without waiving any other rights or remedies, to seek injunctive or equitable relief.

7. Indemnification.

Each Party (“Indemnitor”) shall indemnify, defend, and hold the other Party and its respective officers, directors, employees, and agents ( each an "Indemnitee") harmless from and against all Damages that arising out of any claim that any information, design, specification, instruction, software, data or material furnished by the Indemnitor to the Indemnitee in connection with the Services (“Material”) constitutes an infringement, misappropriation or other violation of any patent, trademark, copyright, trade secret, or other intellectual property right of a third party. Indemnitor shall have the option, at its expense, to (a) modify the Material so it no longer infringes or misappropriates; (b) obtain for Indemnitee a license to continue using the Material; or (c) require return of the affected Material and all rights thereto from Indemnitee. If Contractor is the Indemnitor, Client may, upon thirty (30) days prior written notice to Contractor, terminate the relevant SOW, in which case Client shall be entitled to recover the fees paid for that portion of the Material.
Upon becoming aware of any matter that is subject to the provisions of Sections 8.1 (a “Claim’) (a) Indemnitee must notify Indemnitor promptly in writing about the Claim; (b) Indemnitor has sole control of the defense and all related settlement negotiations; and (c) Indemnitee shall provide Indemnitor with the assistance, information and authority reasonably necessary to perform the above. Indemnitor shall reimburse Indemnitee for its reasonable out-of-pocket expenses incurred in providing such assistance. Indemnitor will not enter into any settlement that imposes any liability or obligation on Indemnitee without Indemnitee’s prior written consent.

8. Limitation of Liability. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT AND IN ANY SOW, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. Indemnitor’s aggregate liability will not exceed the fees received by or payable to Contractor in the twelve months preceding the claim.

9. Solicitation of Personnel. During the term of this Agreement and the twelve (12) months thereafter (“Restricted Period”), Client shall not directly or indirectly solicit or encourage any of Contractor’s employees or independent contractors to leave or terminate their relationship with Contractor for any reason, without Contractor's prior written approval.

10. Dispute Resolution, Arbitration. If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute through good faith efforts. If there is no resolution, then the unresolved dispute or controversy arising from or relating to this Agreement shall be finally resolved by binding arbitration through the platform provided by New Era ADR, Inc. (https://app.neweraadr.com/) (the “New Era Platform”) in accordance with its rules and procedures for “Virtual Expedited Arbitrations” by a professional neutral(s) with substantial experience in resolving commercial disputes (the “Neutral”). The Neutral shall be chosen in accordance with the rules and procedures of the New Era Platform. The parties will bear costs as provided for under this Agreement or, if silent, in accordance with the rules and procedures of the New Era Platform. The prevailing party may be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees and all other expenses) incurred in connection therewith, at the Neutral’s discretion.

11. Notice. Any notice or other communication required or permitted by this Agreement to be given to a Party shall be in writing and shall be deemed given (i) if delivered personally or by commercial messenger or courier service, (ii) when sent by electronic mail, or (iii) if mailed by U.S. registered or certified mail (return receipt requested), to the Party at the Party’s address written below. A copy of any notice to each Party must also be sent by e-mail to the email addresses listed above.

12. Force Majeure. In the event either party shall be delayed or hindered in or prevented from the performance of any act required hereunder by reasons of pandemic, strike, lockouts, labor troubles, inability to procure materials or services, failure of power or restrictive government or judicial orders, or decrees, riots, insurrection, war, Acts of God, inclement weather or other reason or cause beyond that party’s control, then performance of such act (except for the payment of money owed) shall be excused for the period of such delay.

13.Publicity. Contractor shall, with prior written approval of Client, (i) advertise or otherwise publicize the existence or terms of this Agreement or any other aspect of the relationship between Client and Contractor, or (ii) use Client’s name or any trade name, trademark or service mark belonging to Client in press releases or in any form, including, but not limited to, advertising or marketing.

14. General. This Agreement shall be governed by and construed in accordance with the laws of the state listed above as Governing Law, without regard to conflicts of laws principles. This Agreement contains the entire understanding of the parties and supersedes all prior agreements between the parties with respect to the subject matter hereof. All obligations under this Agreement which by their nature extend beyond termination will survive termination and remain in effect. Neither Party may assign this Agreement without the prior written consent of the other and such consent shall not be unreasonably withheld, except when assigning to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. No assignment shall relieve the assigning Party of any of its obligations hereunder. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. This Agreement, and any of its child agreements including SOWs can only be modified in writing signed by authorized representatives of both parties. If any provision of this Agreement shall be found invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Neither Party’s failure to object to any document, communication, or act of the other will be deemed a waiver of any of the terms of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be deemed a single agreement. The Parties will comply with applicable laws and regulations.