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TERMS OF SERVICE

 

Last updated September 2023

CONSULTING SERVICES AGREEMENT

 

This Consulting Services Agreement (“Agreement”) is entered into between you, your employee, agent, user, or purchaser of our services (collectively “Client”) and us, CrushContracts Inc (“Consultant”), and is effective immediately upon Client’s purchase of our services (“Effective Date”). Collectively, the Client and Consultant are the “parties” and each individually, a “party”.  For other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows.

 

1. Services and Warranties

1.1  Services. Subject to the terms of this Agreement, Client will request and Consultant will perform contract review, contract management and other contract related consulting services for Client (“Services”). Consultant may refer to its Services as ICE – Insightful Contract Evaluation® or ICE from time to time. Consultant will perform such Services in a diligent and workmanlike manners. The content, style, form, and format of any work product of the Services shall be reasonably satisfactory to Client and shall be consistent with Client’s values and standards.

 

1.2. Compensation. Client will purchase Services via pre-paid hours directly from its website, applicable statements of work, order forms or task orders that may be mutually executed from time to time (“ICE Plan”). Consultant shall be compensated for the Services as set forth in the applicable ICE Plan.  Any other fees and/or expenses must be approved in writing by the Client. Consultant 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.

 

1.3. Expenses. Unless otherwise approved by Client in writing, Consultant shall be responsible for all expenses incurred while performing Services under this Agreement. This includes automobile, and other travel expenses; laptop, cell phone expenses; meals; and all salary, expenses, and other compensation paid to employees or contract personnel the Consultant hires to complete the work under this Agreement.

 

1.4. Equipment. Consultant will furnish all equipment, tools, and materials used to provide the services required by this Agreement. Consultant represents that s/he is in possession of the equipment, tools, and materials necessary to perform the services described in the applicable ICE Plan.

 

1.5. Consultant Warranties. Consultant represents and warrants that Consultant (i) has the right to perform services for others during the term of this Agreement and (ii) its employees performing Services hereunder will have sufficient expertise, training, licenses and experience to successfully perform the Services and shall be subject to all applicable laws and the terms and conditions of this Agreement. Consultant agrees that all its personnel shall be compensated, taxes withheld, and other benefits made available as required by applicable law and regulations.  As applicable, upon Client’s request and prior to starting any Services, Consultant shall require all of its employees who shall perform Services hereunder to sign a non-disclosure agreement (“NDA”) and Consultant shall forward copies of all of such signed NDAs to Client upon request.

 

1.6  Mutual Warranties. Each party warranties it is a duly organized company or business, validly existing and is in good standing under the laws of its respective jurisdiction, is qualified to do business and is in good standing and has all requisite power and authority, corporate or otherwise, to conduct its business as now being conducted, to own, lease and operate its properties and to execute, deliver and perform this Agreement. It is not a party to, and is not bound or affected by or subject to, any instrument, agreement, charter or by-law provision, law, rule, regulation, judgment or order which would be contravened or breached as a result of the execution of this Agreement; and It has and shall maintain all the licenses, permits, and approvals from governmental agencies required to perform its obligations under this Agreement. Except as expressly stated herein above in this Section 1, each party disclaims all warranties, express, implied or statutory, respecting the content and Services provided under this Agreement, including any implied warranties of merchantability and fitness for a particular purpose.

 

 

2. Term and Termination.

2.1. This Agreement shall be effective for the duration specified in the ICE Plan purchased, and if there is no termination date, then until terminated by either party subject to the terms and conditions of this Agreement.

2.2. This Agreement can be terminated by either party for any reason with a thirty (30) day written notice.

2.3. This Agreement can be terminated for cause immediately for breach by the other party of a material covenant, commitment or obligation under this Agreement if such breach has not been substantially cured within the thirty (30) day period (“Cure Period”) following a written notice of such breach. During the Cure Period, each party will continue to perform its obligations under the Agreement.

2.4  Termination shall be in addition to any other remedies that may be available to the non-breaching party.

2.5  Upon termination of this Agreement, all Service obligations shall cease immediately except for compensation for any authorized work performed by Consultant up to the time of termination.

2.6  Either party may terminate this Agreement immediately upon provision of written notice if the other party becomes insolvent or files for bankruptcy.

 

3. Refunds. Client shall receive a refund for unused hours minus any discounts offered by Consultant only in the event of a termination for cause by Client as defined in Section 2.3, or termination for convenience by Consultant. Refunds for a Force Majeure even shall be determined by Consultant on a case by case basis.

 

4. Confidentiality

4.1 “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 a) which was lawfully known to the receiving party (“Receiving Party”) prior to the date of such disclosure as evidenced in writing; b) which is in the public domain by reason other than a breach of this Agreement; or c) that is required to be disclosed by a court of competent jurisdiction, provided the disclosing party (“Disclosing Party”) is notified promptly in writing to obtain a protective order.

 

4.2 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.

 

4.3 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. 

 

4.4 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.

 

4.5 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. 

 

4.6 Client Data. Contractor may collect and use Client’s usage data of Services (“Usage Data”) to develop, improve, operate, and support its products and services. Contractor will not disclose any Usage Data to any third-parties unless (a) it is in accordance with Section 3 (Confidentiality) of this Agreement; or (b) it is anonymized and aggregated such that it does not identify Client or Client’s Confidential Information.

 

5.  Non-solicitation.

During term of this Agreement, and for an additional twelve (12) months immediately following the termination of the Agreement for any reason, neither party directly or indirectly, hire or solicit any employee or independent Consultant of the other party that provided Services (“Conflicted Personnel”) during the term of this Agreement, except pursuant to a general solicitation which is not directed specifically to any such Conflicted Personnel.

 

6.  Consultant Inventions and Work for Hire. 

6.1 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, ICE 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). 

6.2. Consultant 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 Consultant either solely or in conjunction with other employee or independent Consultants of Client during and after Consultant’s relationship or engagement with Client that relates directly or indirectly to or is useful in any manner in the business then being conducted or proposed to be conducted by Client and/or that is based on or uses Confidential Information is “works 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.  Consultant hereby makes and agrees to make all assignments to the Client, and designates and appoints the Client as Consultant’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 Consultant’s own time, without use of any Client assets, ideas, Confidential Information, and/or direction. 

 

7. Prior Invention Disclosure. As applicable and upon Client’s request, Consultant will disclose to Client a complete list of all Inventions or innovations made by Consultant prior to commencement of the services for Client and which Consultant desires to exclude from the application of this Agreement.  Consultant will disclose to Client such additional information as Client may request regarding such Inventions or innovations to enable Client to assess their extent and significance.  Client agrees to receive and hold all such disclosures as Confidential Information of Consultant, and shall protect it as it protects its Confidential Information. Except as disclosed as per this Agreement, Consultant has no other agreements, relationships or commitments to any other person or entity which conflict with Consultant's obligations to Client. Consultant agrees not to enter into any agreement, either written or oral, in conflict with this Agreement.

 

8. Relationship of the Parties. This Agreement does not create an employment relationship.  Consultant enters into this Agreement as, and shall continue to be, an independent Consultant. Consultant 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.  Consultant 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 Consultant’s services to Client.

 

9. 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.

 

10. Indemnification. 

10.1. Each Party (“Indemnitor”) shall indemnify, defend, and hold the other Party ("Indemnitee") harmless from and against judgments, liabilities, fines, penalties, losses, claims, actions, demands, lawsuits, costs, and expenses including, without limitation, reasonable attorneys' fees, that arise out of or relate to (a) the gross negligence, willful misconduct or fraud of the Indemnitor; (b) the Indemnitor’s breach of any obligation, representation or warranty under this Agreement; or (c) the failure by the Indemnitee to comply with any applicable laws, rules and regulations, provided that: (a) Indemnitee notifies Indemnitor promptly in writing about the claim; (b) Indemnitor has sole control of the defense and all related settlement negotiations; and (c) Indemnitee provides 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.

10.2. In the event that any information, design, specification, instruction, software, data or material furnished by the Indemnitor hereunder (“Material”) is held or is reasonably believed by Indemnitor to infringe or misappropriate the intellectual property rights 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 Consultant is the Indemnitor, Client may, upon thirty (30) days prior written notice to Consultant, terminate the relevant ICE Plan, in which case Client shall be entitled to recover the fees paid for that portion of the Material.

 

11. Limitation of Liability. Except for the parties confidentiality and intellectual property obligations under this agreement, the indemnitor’s aggregate liability will not exceed the fees received by or payable to contractor in the twelve months preceding the claim. 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, LOSS 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.

 

12. No Conflicts. Consultant agrees that Consultant has not made, and agrees not to make, any agreement, oral or written, that conflicts with this Agreement and/or any other agreements with the Client. Consultant will not violate any agreement with or the rights of any third party in relation to Consultant’s relationship or engagement with the Client. When acting within the scope of Consultant’s relationship or engagement (or otherwise on behalf of the Client), Consultant will not use or disclose his or her own or any third party’s confidential information or intellectual property, except as expressly authorized by the Client in writing.

 

13. 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.

 

14. 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.

15. 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.

 

16. 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. 

 

17. 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.

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